Unfair Dismissal (Including Unfair Constructive Dismissal)

In unfair dismissal cases Employment Tribunals examine two main issues: the reason for the dismissal and the procedure adopted in carrying it out. To fairly dismiss, you firstly need to be able to demonstrate to a Tribunal that your principal reason for dismissal was one of the potentially fair reasons set out in the Employment Rights Act 1996. Secondly, you need to show that the process you have followed in dismissing is fair and reasonable (i.e. that at the end of that process, you can demonstrate you have come to a reasonable conclusion).

Our expert employment lawyers are able to advise you on the most appropriate reason for dismissal from the five potentially fair reasons and also advise you on the required process to achieve that dismissal. The five potentially fair reasons are:

1. Redundancy;

2. Conduct;

3. Capability;

4. Illegality; and

5. Some other substantial reason.

It may be that you are considering redundancies, in which case, you will normally need to ensure that you follow the appropriate selection and consultation procedures. This is especially the case if you might trigger the collective redundancy consultation requirements where 20 or more employees are be made redundant within a 90 day period. We will be able to advise you on the appropriate pools for selection, fair selection criteria and the process of consultation, depending on the applicable circumstances, to ensure your requirements to make redundancies are met and you select appropriately and fairly. This will ultimately put you in a strong position to defend any Tribunal claims.

You may have misconduct issues and need to discipline an employee. We can advise on the best approach. Often employers have grounds to dismiss but do not follow a fair procedure leaving themselves exposed to an unfair dismissal claim. A common mistake is to deal with issues of poor performance as a disciplinary matter. This can lead to a finding of unfair dismissal (as the correct process to follow for poor performance is different to that used in conduct cases).

Capability dismissals relate to situations where either an employee’s health or skill prevents them from being able to do their job. Dismissals in either situation can be fair, but where a situation involves health issues consideration must always be given to the possibility of disability discrimination. Where you need to address poor performance issues the process is notoriously unattractive to employers given the amount of time and effort it takes to deal with the matter properly. We can advise on practical ways of addressing issues of poor performance within your organisation and achieving the quickest and most practical outcome for you.

There may be allegations that allow you to dismiss for some other substantial reason or the Contract may be illegal (for example, where an employee’s right to work in the UK lapses), both of which are further grounds upon which you can (potentially) fairly dismiss.

There may be scope in your organisation to terminate by reason of retirement but this brings with it numerous issues around discrimination and needs careful planning and preparation should you want to implement a compulsory retirement age. In most cases this will be unlawful under the Equality Act 2010. However, in certain circumstances it may be possible to have a compulsory retirement age.

Unfair Constructive Dismissal cases arise where an employee claims that there has been a fundamental breach of contract by you which entitles the employee to resign and be released from any further obligation under the employment contract. Such claims may be successfully defended if you can show that:

  • there has not been a fundamental breach;
  • the employee has unreasonably delayed in resigning and therefore affirmed the contract;
  • the resignation was not because of your alleged breach or alternatively that the constructive dismissal was nonetheless fair (for example, under the some other substantial reason category)

In each case we can provide expert advice to assist you achieve the best outcome for your organisation.

Where dismissal is contemplated, especially in redundancy cases, this might be done using a Settlement Agreement. We can prepare a suitable agreement and provide the advice you will require should this happen.

More from the Downs Blog

Life after Lockdown - Returning to the office

At the press conference on the 5th July, the Prime Minister announced the relaxation of the regulations on the 19th July subject to a review of the latest data on the 12th July. If the regulations are relaxed, then employees will be able to return to the office on the 19th July.

With the latest Government advice - Do I still need work from home?

The Government’s roadmap identified that until England reached Step 4 of the Roadmap, employees should work from home where they can. As we are aware Step 4 has been delayed from 21st June to 19th July 2021 and therefore, employers should continue with home working wherever possible until the 19th July.  

Changing an employee’s terms and conditions is challenging both from a legal and trust perspective.

British Gas has been in the media over recent weeks due to the “fire and rehire” approach with their employees.

What are restrictive covenants and why do I need them?

I own a start-up which grew very quickly and a few years ago I hired in a couple of senior personnel to help run the business. After 5 years, one of these senior hires is now leaving the business and going to a company which isn’t a direct competitor but operates in a very similar field.

Do you need to offer enhanced shared parental leave pay?

When shared parental leave was introduced in 2015, one of the concerns was whether an employer would need to offer enhanced shared parental leave pay if the employer provided enhanced adoption and/or maternity leave pay.

Domestic Abuse in the Workplace

The Department for Business, Energy & Industrial Strategy undertook a report into domestic abuse and the workplace. The report identified that the number of domestic abuse cases had increased during the pandemic and that 1 in 5 victims of domestic abuse had time off work. Sadly, research found that few employers were able to identify the signs of domestic abuse and/or had policies or procedures available to help support survivors.

The Spring Budget 2021: A Summary

As the UK eagerly tuned in to the most anticipated Budget for a generation, many were left wondering what the Chancellor’s traditional “rabbit out of a hat” might contain - especially as several big measures had been announced beforehand.

Uber Drivers are workers and not self-employed, Supreme Court rules

19 February 2021. The UK Supreme Court has issued its judgment in the highly anticipated case of Uber BV v Aslam, in which the key issue was the employment status of Uber drivers. The ruling reinforced the findings of earlier legal challenges (most recently the Court of Appeal in 2018), which found that Uber drivers are workers and not self-employed.

Can I force my staff to have the Covid Vaccination?

Recent news reports indicate that some employers are considering making it compulsory for their staff to have a Covid vaccination.  Is this a lawful, or even sensible, move by employers?

Caring for your employee’s mental health

The WHO defines good mental health as: “a state of wellbeing in which every individual realises his or her own potential, can cope with the normal stress of life, can work productively and fruitfully and is able to make a contribution to his or her community.”

Millions of UK workers to receive increase in pay from April 2021

In April of each year, the Government increases statutory payments that are payable to workers and employees. 

Working from home - where do you stand?

Under new government guidance, you should work from home if you can effectively do so. However, some employers may ask their employees to return to work whilst restrictions are in place - particularly if it is not reasonable to carry out that work at home. For those who are concerned about health problems, or juggling childcare, where do you stand in the eyes of the law?

What the new lockdown means for businesses, employees and workers

The third lockdown in England legally came into force on 6 January 2021. How long it will last is uncertain. At least until mid-February and possibly until late March. Vaccination provides a route out of the pandemic, but businesses need to survive this final and possibly longest of the lockdowns.

We are open

During these uncertain times, it is good to know you can count on us.

Even after the recent Government announcement of another national lockdown we remain open for business and are here to help you.

Coronavirus Job Retention Scheme Extended Until March 2021

On Thursday 5 November 2020, the Chancellor announced that the furlough scheme is to be extended until the end of March 2021. During this period you will be able to claim up to 80% of an Employees salary up to a cap of £2500.

 

Coronavirus Update - CJRS Extended

The Chancellor announced over the weekend that the Coronavirus Job Retention Scheme (CJRS) that was due to end on 31st October will be extended until 2nd December.  The level of support available under the extended scheme will mirror that of what was available under the CJRS in August, with the Government paying 80% of wages up to a cap of £2,500.

Chancellor announces changes to the Job Support Scheme

The Chancellor announced on Thursday 22 October that the Government contribution to employers’ wage costs under the Job Support Scheme (JSS) will be increased. Employers will be expected to pay 5% of the cost of unworked hours instead of the 33% originally announced.

Coronavirus Update - CJRS Bonus - Are you eligible?

Back in the summer the Chancellor announced that employers could receive a one-off payment of £1,000 for every employee who had previously been furloughed under the Coronavirus Job Retention Scheme  provided they remained continuously employed to the end of January 2021.  Businesses will be able to claim the Job Retention Bonus from 15 February 2021 and the Government has stated that further guidance will be provided by the end of January 2021.

Coronavirus Update - Jobs Support Scheme announced

With new government guidance on Covid coming into force today and the current furlough scheme coming to an end next month, as expected, the Chancellor has today announced a new scheme to help businesses.  

Latest government Covid measures re-introduce work from home message

As Covid-19 cases continue to climb, the UK faces ever tougher restrictions. But, with the furlough scheme winding down, what rights do employers and employees have when returning to work?

 

Barclays backtracks in privacy row over worker surveillance project

Barclays Bank has withdrawn a system that monitored employees’ computers, tracking individual working patterns and how much time each day was spent on breaks. Details of the pilot project came to light after a Barclays whistle blower reported it to a newspaper.

New contract terms affecting all new employees and workers to come into force on April 6 2020

From 6 April 2020 there will be changes to the minimum written terms that must be provided to employees AND the timing of when these terms must be provided to them. These terms are known as Section 1 statements, referring to Section 1 of the Employment Rights Act 1996 (ERA).

The Parental Bereavement Leave and Pay Regulations set to come into force on 6 April 2020

Downs Solicitors is pleased to play a small part in helping to raise awareness of a new and important piece of employment law that is coming into force in April 2020. The Parental Bereavement Leave and Pay Regulations will be known as Jack’s Law. This is in memory of Jack Herd who died in 2010 and whose mother, Lucy, has campaigned tirelessly ever since for mandatory leave for grieving parents.

What could work look like in 2020?

One of the big focuses in recent years has been on flexible working and how it has changed the concept of a “normal” working day. From challenging the norms of 9-5 working to commuting time counting as working time, there’s no doubt that the new decade could bring a new shape of working – but what does that mean for business leaders and their HR teams?

How might the decision to make ethical veganism a philosophical belief affect employers?

Jordi Casamitjana was dismissed in 2018 by The League Against Cruel sports for gross misconduct. Mr Casamitjana, an ethical vegan, claims that his dismissal came after telling colleagues that their employer’s pension fund was being invested in companies involved in animal testing. His solicitors claimed that the decision to dismiss was made because of his beliefs around ethical veganism.

Workers’ Rights – What the main parties are saying in their election manifestos

With the General Election looming on 12th December what are the main parties saying in their election manifesto's on workers' rights.  David Seals, Head of Employment, takes a look at the key messages.

Workplace health and well-being – It’s time to talk the menopause. A guide for employers

Introduction

Improving the conversation about the menopause at work is important for both workers and employers. For the worker experiencing symptoms, the onset of the menopause can be a challenging time and one that is a sensitive and personal matter. For an employer, menopause is a health and well-being concern for their workers and one that needs managing sensitively.

Time to call for further workplace flexibility

Whilst many see flexible working as an opportunity to juggle a work life balance more successfully, a lot of work needs to be done around overall wellbeing for the employee – and ways in which the employer can help facilitate that.

Stress in the workplace

According to the Health and Safety Executive (HSE), stress, depression and anxiety were the main factors for time off work in 2017/18, equating to 15.4 million working days lost.

3 Ways employers can take better care of the older workforce

People are living longer and therefore, they are working longer. According to the latest data from the ONS, there has been a rise in the number of over-50s in the workplace due to changes in the state pension age and shortfalls in pension payments.

Working on the go is creating new choices

Self-employment is on the rise with more people “going it alone” than ever before. With a rise in easy-to-use, on the go technology more accessible, it’s hardly surprising that more people are opting for self-employment to cater to more adaptive lifestyles. But, what sort of impact is it having in the wider professional environment?

Working 8–4? What a way to make a living!

As if Ms Dolly Parton’s appearance at the recent Grammy Awards wasn’t enough, her new Netflix series beginning in 2019 will soon have reminisces tapping their feet to some of her major hit records. Perhaps working “9-5” is one that resonates most – and what a way to make a living indeed. Since writing her hit, the workplace has changed considerably and it is interesting to see how employers and employees alike are adapting to that change.

Roses are red, violets are blue, I'm not sure WORK is the place for romance, are you?

Valentine’s Day has gone for another year, but it got us thinking about the consequences of romance in the workplace, for both employees and employer.

Truth, proof and the right to work

Right-to-work checks and dismissal have always posed a challenge to employers. Recent inconsistent Employment Appeal Tribunal (EAT) judgments have exacerbated the difficulties. What is an employer to do? Head of Immigration, Samar Shams recent article in the Employment Law Journal goes back to basics and extracts the most important lessons from the muddled judgments.

Managing a more flexible workforce

To follow up on a couple of recent news stories relating to flexible work, for employers thinking of adopting change, you will also need to know how to effectively manage a more flexible workforce.

The email train: Does the commute count as working hours?

It seems the debate about “working hours” rages on. We recently wrote a blog about how working hours have changed and that people are moving towards much more flexible models.

Working 9-5: Not the way to make a living

Despite Dolly Parton's smash hit, it seems that just 6% of working people are sticking to the traditional 9-5 shift pattern, according to a recent survey by YouGov.

Show More

Our Team

Meet all of the team at Downslaw


Cobham

15A High Street
Cobham
Surrey
KT11 3DH

T: 01932 589599
F: 01932 505087

DX: 46102 COBHAM

Dorking

156 High Street
Dorking
Surrey
RH4 1BQ

T: 01306 880110
F: 01306 471230

DX: 57300 DORKING

Godalming

The Tanners
75 Meadrow
Godalming
Surrey
GU7 3HS

T: 01483 861848
F: 01483 431965

DX: 58308 GODALMING 1