Unfair Dismissal CIPD
A dismissal is a significant event in an employment relationship that can have far-reaching consequences for both the employer and the employee. Understanding the intricacies of fair and unfair dismissals is crucial to ensure compliance with the law, maintaining employee morale, and protecting the reputation of the business. In this comprehensive guide, we will delve into the concept of dismissal, explore wrongful and unfair dismissals, discuss the importance of fairness, and provide insights into good practice for handling dismissals effectively.
Dismissal lies at the heart of employment law, as it represents the termination of the employment contract between an employer and an employee. It can occur in various ways, such as when an employer terminates the contract, a fixed-term contract expires, or an employee resigns due to the employer’s conduct.
Common reasons for dismissal include misconduct, inability to perform the job, and redundancy. However, dismissing employees should be considered only when other options to improve performance have failed, as it can be costly and detrimental to both the employee and the business.
Wrongful dismissal occurs when an employer breaches the employment contract while terminating the employee. This typically involves terminating the contract without notice or failing to provide the contractual notice period. The law prescribes minimum notice periods that employers must adhere to.
Wrongful dismissal claims can be made without any minimum length of service requirement. As a member of the Chartered Institute of Personnel and Development (CIPD), you can access detailed information about wrongful dismissal law in our comprehensive Q&A resources.
Unlike wrongful dismissal, unfair dismissal pertains to an employee’s statutory right to not be unfairly dismissed. The Employment Rights Act 1996 primarily governs an unfair dismissal claim in Great Britain, while Northern Ireland has its own set of regulations.
For a dismissal to be potentially fair, the employer must demonstrate that it was for a specific reason and handled appropriately. The five potentially fair reasons for dismissal include capability or qualifications, conduct, illegality or contravention of a statutory duty, some other substantial reason, and redundancy.
Retirement is no longer considered a potentially fair reason for dismissal. Special rules exist for discussions of employment law issues leading to settlement agreements, and our CIPD members can find detailed information in our resources on tribunal claims, settlement, and compromise law.
Clear individual dispute resolution, disciplinary and grievance procedures are essential for employers to handle disputes effectively. Line managers and relevant staff must be adequately trained in the organization’s policies and procedures, ensuring fairness and consistency across the organization.
Fairness in Dismissal
To meet the requirements of a fair dismissal procedure, one must not only fall within one of the potentially fair reasons but also be handled fairly and reasonably. This necessitates following a fair procedure, with employment tribunals exercising wide discretion in determining the fairness of dismissal procedures.
Even in cases of gross misconduct, a thorough investigation and consideration of all circumstances are necessary for a dismissal to be fair. Employers must establish the facts before taking any action and assess whether alternative approaches to improve performance would be effective. Acas provides guidance on handling conduct-related matters, including the required level of proof.
In instances of poor performance, employers should consider whether underlying factors beyond the employee’s control contribute to the issue. Appropriate remedies and support, such as learning and development opportunities, should be implemented to help enhance performance. Employers should also consider any underlying health conditions and facilitate supportive conversations, providing access to expert help when needed.
If positive approaches fail to yield results, employers may need to resort to disciplinary action, which could include dismissal. The Acas Code of Practice guides employers in dealing with disciplinary matters, and adherence to the code is essential. Employers should have their own contractual or customary disciplinary processes to resolve workplace legal issues and ensure fairness.
Typically, a fair procedure involves informing the employee in writing about the alleged offence, conducting a meeting to discuss the offence (with the employee having the right to representation on legal issues), and offering the opportunity to appeal against any sanction. In the interest of impartiality, decisions related to suspension and disciplinary sanctions should involve multiple individuals.
Employers must communicate in a timely, comprehensive, unambiguous, sensitive, and compassionate manner throughout the process. Dignity and the health and welfare of individuals involved in a disciplinary procedure should be prioritized. Suspension should be a last resort after considering all reasonable alternatives and should be reviewed on an ongoing basis.
Even in cases where a fair dismissal is justified and proportionate, employers should be mindful of the potential impact on the individual’s health and well-being. Acting with compassion and providing necessary support is vital, irrespective of the circumstances.
Qualification and Claim
Employees are not automatically protected from unfair dismissal at the start of their employment. The qualifying period varies depending on the employment start date:
Employees employed before 6 April 2012 require one year’s continuous service.
Employees employed on or after 6 April 2012 require at least two years of continuous service.
Exceptions exist to the qualifying period requirement, including dismissals related to trade union membership or activities, pregnancy or childbirth, and claims related to the National Minimum Wage or National Living Wage.
Early conciliation with Acas is a mandatory step for all employees before making an employment tribunal claim following a grievance.
Fairness in dismissals is of paramount importance in maintaining healthy employer-employee relationships, complying with the law, and promoting the well-being and dignity of the individuals involved. Employers must handle dismissals in a fair and reasonable manner, following proper procedures and considering alternatives to dismissal whenever possible. Understanding the law and workplace legal issues surrounding unfair dismissal and implementing appropriate policies and training is essential for organizations.
While dismissal can be a complex and challenging process, employers can navigate it successfully by prioritizing fairness, conducting thorough investigations, following the Acas Code of Practice, and providing ongoing support to affected individuals.
By adhering to the principles of fairness and implementing best practices, organizations can minimize the risk of unfair dismissal claims and maintain a positive working environment.
Can an employee claim unfair dismissal without a qualifying period?
Yes, an employee can claim unfair dismissal without a qualifying period for specific reasons such as trade union membership, pregnancy or childbirth, and certain wage-related claims.
What steps should employers take before considering dismissal?
Employers should first establish the facts, conduct a thorough investigation, and consider alternative approaches to improve performance or address conduct-related issues. Dismissal should be the last resort.
What is the role of early conciliation in unfair dismissal claims?
Early conciliation with Acas is mandatory before making an employment tribunal claim following a grievance. It provides an opportunity for resolution without going to court.
How can employers ensure fairness in the dismissal process?
Employers should have clear and communicated dispute resolution and grievance procedures, follow a fair procedure, consider all circumstances, and act in a compassionate manner, safeguarding the health and well-being of individuals involved.
What support should employers provide to individuals affected by dismissal?
Employers should ensure ongoing support is available to individuals, considering the potential impact of dismissal on their health and well-being. Acting with compassion and providing necessary assistance is crucial.