In the world of HR and employment law, dismissals are rarely as simple as they seem. The rules are complex, the risks are real and a single misstep can bring consequences that linger far longer than the initial decision.
And now, with the government’s latest proposals outlined in the Employment Rights Bill 2024 suggesting that employees may soon be able to bring an unfair dismissal claim from day one of employment, those risks could become even more frightening.
If this change becomes law, the long-standing requirement for a minimum qualifying period of two years’ service could be swept away. This would open the door for new starters to challenge dismissals immediately, placing even greater pressure on employers to ensure every decision is fair, justified, and procedurally sound.
So, how can you keep the employment law poltergeists at bay and avoid finding yourself haunted by a tribunal claim? Remember these golden rules for surviving the curse of unfair dismissal.
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Beware the Reason
Every dismissal must rest on a fair and lawful reason. The recognised categories under UK employment law include conduct, capability, redundancy, statutory restriction, or some other substantial reason. Employers must be able to point to one of these as the basis for the decision.
However, identifying the reason is only the beginning. The reason must also be fair in all the circumstances. Was the investigation thorough? Was the evidence reliable? Did the employee have a chance to respond? If the rationale doesn’t withstand scrutiny, the claim that won’t die could rise again, stronger than ever.
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Follow Procedure
Even where the reason for dismissal seems obvious, skipping key procedural steps is where many employers fall into peril. Document everything, investigate thoroughly and hold fair meetings where the employee can state their case.
Consultation and communication are not just formalities. They demonstrate fairness, transparency, and respect for the employee’s rights. The ACAS Code of Practice sets out a clear framework for disciplinary and grievance procedures and following it carefully can significantly reduce the risk of a successful claim. Ignoring it, on the other hand, can lead to costly compensation awards and reputational damage.
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Don’t Invite the Phantom of Presumption
With potential “day one” rights on the horizon, employers can no longer rely on the safety net of length-of-service thresholds. Even the faintest appearance of unfairness could conjure a claim from beyond the grave. The fact of a claim is often as problematic as the strength of it.
Further, recruitment processes will need to be robust to ensure you only recruit candidates who are genuinely right for the role - where both the organisation and the individual feel the fit is right.
The key to avoiding the horror of an unfair dismissal claim lies in preparation.
Ensure managers are trained on lawful dismissal procedures, keep policies up to date and seek expert legal advice before making any decision that could be challenged. If you feel that chill of uncertainty before a dismissal, don’t wait until the curse takes hold.
Break the spell and contact our employment law specialists at Downs Solicitors for guidance before your HR decisions come back to haunt you.
Contact Heather Love
