Correct process | How to avoid unfair dismissal claims

How to avoid unfair dismissal claims

By Louise Gillibrand, HR Policy Consultant, Moorepay

Barely a day goes by without an unfair dismissal claim hitting the headlines. Many of these claims are down to employers failing to follow a full and fair procedure. So, read on for six ways to avoid unfair dismissal claims.

Follow your internal procedures

It’s important that employers follow their organisation’s HR procedures, including any that could lead to an employee being dismissed. You should also be mindful that employees have access to an abundance of information on unfair dismissal claims on sites such as GOV.UK, ACAS and Citizens Advice.

While you may think that you’ve dismissed an employee fairly, it’s still possible for an individual to bring a claim of unfair dismissal. An employee can usually bring a claim for unfair dismissal when they’ve completed two years of continuous service. An employee may say for example:

  • That the dismissal was unfair because you did not follow the correct process for disciplinary and dismissal.

  • The reason given for the dismissal was not the real one or was unfair.

  • That you acted unreasonably.

Taking advice at the earliest opportunity with an employment situation that may lead to a dismissal (i.e. absence management, redundancy, disciplinary or capability) is key. For example, an unfair dismissal claim relating to a disciplinary situation, often comes down to the investigation, or lack of investigation into the matter. An employer should conduct an investigation into the alleged offences, and obtain the employees’ response at the investigation, before a decision is made to convene a disciplinary hearing.

Remember, an employee doesn’t always require two years’ service to bring an unfair dismissal claim

Certain reasons for dismissal are called ‘automatically unfair’. These automatically unfair reasons are to do with the following:

  • Pregnancy, including all reasons relating to maternity leave.

  • Family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants.

  • Acting as an employee representative, trade union representative or occupational pension scheme trustee.

  • Joining or not joining a trade union.

  • Being a part-time or fixed-term employee.

  • Pay and working hours, including the Working Time Regulations, annual leave, and the National Minimum Wage.

  • Whistleblowing.

  • Compulsory retirement on the grounds of age is unlawful unfair dismissal unless you can objectively justify it. Take advice as you could be challenged at an employment tribunal.

Ensure managers are trained in your procedures

When following HR procedures, managers should ensure they fully understand them, they should always take advice and they should follow guidance before commencing with any procedure. This is especially important where it could lead to the dismissal of an employee or multiple employees (for example a redundancy procedure). The impact of the COVID-19 pandemic has led to many businesses revisiting their staffing requirements and commencing consultation with their employees to restructure departments or even the whole business. Failure to follow a fair redundancy procedure (which could include missing out steps of the process) could lead to employees challenging decisions about their roles being made redundant.

The process being followed and the meetings that are held should be accurately documented and kept by the employer when dismissing an employee.

Make sure the right person is being appointed to handle the HR procedure

Always consider who in the organisation is the right person to follow the HR procedure. Your company size and management structure will impact on this decision. A tribunal will expect different parties to be appointed at each stage where possible. I.e. disciplinary investigation, disciplinary hearing chair, appeal chair. This ensures all parties can remain as objective as possible.

Treat employees fairly and consistently

Make sure you apply your HR procedures fairly and consistently. This will help avoid unfair dismissal claims and claims of discrimination because employees will be treated equally.

Consider any feedback or input from employees when following HR procedures

If an employee raises a grievance part way through a disciplinary or redundancy process, it does not necessarily mean the original procedure has to be put on hold. However, consider how this could look to an employment tribunal. Could the procedure the employee is complaining about seem rushed if it was not put on hold? It’s always best practice to take HR advice in these circumstances.

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