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Employers: Protecting your business from unfair dismissal claims

Your employees have the right not to be unfairly dismissed from their employment. Two claims that can arise out of not following the correct procedure when dismissing an employee are wrongful dismissal and unfair dismissal.

Wrongful dismissal

Wrongful dismissal arises if you do not act within the terms of your employees’ employment contract when dismissing them. This amounts to a breach of contract and may mean that you are unable to enforce any restrictive covenants in the employment contract and other contractual terms after their dismissal.  There is no length of service requirement for employees making wrongful dismissal claims, and so you need to ensure that you comply with an employee’s contract of employment when dismissing them no matter how long you have employed them.

Unfair dismissal

An employee can bring a claim for unfair dismissal in circumstances where the reason or the process used to dismiss them is unfair. Employees who have been employed for two years or more can make a claim for unfair dismissal in certain circumstances.

It is usually obvious to both employer and employee when an employee has been dismissed, but a claim for unfair dismissal can also be brought when their fixed term contract expires and is not renewed, or where they have reason to resign because your conduct amounted to a fundamental breach of their employment contract (constructive dismissal).

Fair reasons for dismissal

There are a number of potentially fair reasons for dismissal that you can rely on when dismissing an employee, such as for misconduct or their capability to do the job. Even if one of these reasons do apply, a dismissal may still be deemed unfair if you do not follow a reasonable procedure in reaching your decision.

Reasonable Procedure

You must act reasonably in treating the reason for dismissing an employee as sufficient grounds for your dismissal.  It is also highly advisable to have your own disciplinary and grievance procedures in place. Following the steps in these procedures in such instances will give you a fair procedure framework around which to act. We can provide you with such policies tailored to your business should you not already have measures in place.

How we can help

We understand that dismissals are sometimes necessary. However, it is advisable to seek legal advice at an early stage to avoid the many potential pitfalls in the process. By seeking unfair dismissal advice from one of our expert employment solicitors, we can ensure that your reasons for wanting to dismiss is within the permitted reasons and that your company policies are up to date to ensure you follow a fair process. We can support you through a capability or misconduct procedure to help minimise your risk of facing an unfair dismissal claim. Because the law on unfair dismissal is complex, it pays to take professional advice on unfair dismissal before any dismissal takes place. We can guide you through the process to ensure that your business is protected.