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.