An employee has the right not be unfairly dismissed by his employer. He can bring a complaint to the Employment Tribunal (ET) for unfair dismissal if he has been continuously employed for one year and is employed under a contract of employment.  Any such claim must be made to the ET within 3 months of the effective date of termination, which is the date of dismissal or the date that the notice period expires.

Once the claim has been accepted by the ET, a copy of the claim will be sent out to the employer (Respondent) notifying them of the claim against them.  The employer then has 28 days within which to lodge their defence (Response) to the ET.

Once the fact of dismissal has been established, an employer then has to show what the reason was for the dismissal and that it was one of the listed potentially fair reasons for dismissal which are:-

 

1. Capability
2. Conduct
3. Redundancy
4. That the employee could not continue to work in the position he held without contravention of a duty or restriction imposed under an enactment (i.e., a driver losing his driving licence)
5. Some other substantial reason
6. Retirement

Since the abolition of the statutory disciplinary procedures in April 2009, it is less onerous for an employer to show that they have followed the disciplinary procedure.  However, the fact that there is no longer a statutory dismissal procedure to follow does not mean that the Tribunal does not expect to see that a fair and reasonable process has been followed.

In deciding whether the procedure followed was fair and reasonable, the Tribunal will take into account whether the employer has followed the ACAS Code of Practice.

As a minimum, the employer should take the following steps before dismissing an employee.

1. Investigate the allegations fully, and where appropriate, suspend the employee on full pay, pending the outcome of those investigations.
2. Write to the employee inviting them to attend a disciplinary meeting, setting out the issues of concern that are to be discussed at the meeting.
3. Hold a disciplinary hearing with the employee and put the allegations to them, and give them the opportunity to put their version of events.
4. Adjourn the meeting to consider all the evidence and make a decision.
5. Once you have reached your decision, write to the employee, informing them of the same.  Give them the right to appeal against your decision.
6. If the employee exercises their right of appeal, convene an appeal hearing, ideally with a more senior member of management who has not been involved in the disciplinary process.

This list is not intended to be exhaustive – each and every disciplinary issue will be different and as such, procedures may need to be varied to each individual case.  If you have a disciplinary issue that you would like to discuss, please contact us.

In deciding whether the dismissal was fair or unfair, the Tribunal will consider the procedure that you have followed.  If you have followed a fair procedure, then the Tribunal will consider whether dismissal was a reasonable one for an employer to make in the circumstances of the case. If the Tribunal finds that dismissal was a reasonable outcome, then the dismissal will be deemed to be fair, and the employee will lose their case.

If you have any queries about unfair dismissal or you have had a claim made against you, please contact us for further assistance.