How to avoid an unfair dismissal claim

by Redmans on November 2, 2012

  • SumoMe

If your company has employees (and presumably it does) then at some point it’s inevitable that a circumstance will arise which will involve the disciplining and potential dismissal of one of your employees. This can be a stressful situation both for the employer and the employee – the employer is losing valuable human capital and the employee is losing their job. However, as stressful as dismissing an employee may be, it’s even more stressful if the employee then issues an unfair dismissal claim in the Employment Tribunal afterwards. As well as the management time that is consumed with dealing with such a circumstance, it is also a potentially costly enterprise. This article therefore aims to walk employers through some of the necessary steps to avoid dismissing an employee unfairly and, further, any potential Employment Tribunal litigation. This will involve an examination of:

  1. Don’t suspend the employee unnecessarily
  2. Carry out a fair investigation
  3. Carry out a fair disciplinary hearing
  4. Allow the employee an opportunity to appeal
  5. Offer a compromise agreement to the employee

Don’t suspend the employee unnecessarily

Although an employer has the power to suspend an employee as a result of an allegation made against them it is important that the employer exercises this power considerately and carefully. Before suspending the employee the employer should determine whether it’s necessary to suspend the employee and how, if not, it can be avoided. If an employee is unreasonably suspended then it can result, potentially, in a claim for constructive dismissal against the employer.

Carry out a fair investigation

Although not absolutely necessary this can often be crucial in determining the reasonableness – and therefore fairness – of a dismissal. If allegations of misconduct or incapacity are made against an employee then it is highly recommended that an investigation be carried out by an impartial third party. This investigation should aim to gather information of the allegations and produce an outcome as to whether disciplinary sanctions are necessary in the circumstances.

Carry out a fair disciplinary hearing

This is absolutely crucial. If you fail to carry out a disciplinary hearing at all then it’s fairly clear that the dismissal is unfair – only in the most extreme circumstances can a failure to carry out a disciplinary hearing be deemed fair. If you do carry out a disciplinary hearing (and, again, this is recommended) you should appoint an impartial third party to carry out the disciplinary hearing – if possible, not the same person who conducted the investigatory hearing. The employee should be invited in reasonable time to the disciplinary hearing, allowed to bring a colleague or Trade Union official with them, allowed to put their case adequately, and informed as promptly as possible of the outcome.

Allow the employee an opportunity to appeal

If the employee is dismissed at the conclusion of the disciplinary hearing then the employee should be informed of their right to appeal against the dismissal as soon as possible after the disciplinary hearing. If the employee appeals (and they normally will) then the employer should set up a disciplinary appeal hearing and, if possible, this disciplinary appeal hearing should be chaired by a senior person in the business.

Offer a compromise agreement to the employee

Although this isn’t strictly relevant to the procedure for fairly dismissing an employee, compromise agreements are a useful way of limiting an employer’s liability to an Employment Tribunal claim if the employer believes that the dismissal may have been unfair for any reason. You should try and contact a solicitor to get a compromise agreement drafted and compromise agreement advice.

Redmans Solicitors are London employment lawyers and offer employment law advice to employers and employees.

  • Thomas

    If only all employers took these suggestions into consideration when making redundancies.

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