How Can Employers Protect Against Unfair Dismissal Claims?

Dismissals can be a tricky area for employers, even if they believe they have good grounds for sacking an employee. If they handle a situation wrong early on, it could end up being disastrous further down the line. While the rise in cost of employment tribunals has seen a significant drop in tribunal claims overall, the number of unfair dismissal cases continue to grow – with around 46% of the claims successful for the claimant. It can be a costly process for employers if they lose an unfair dismissal case. The average compensation made to an employee for unfair dismissal was £12,362 for 2014/15. But this is just the compensation awarded. Add on to it all the employer’s preparation time, plus of course the legal costs. So, what can employers do to avoid a dismissal ending up in an employment tribunal?

Before considering dismissal

Before an employer considers dismissing a member of staff, they must make sure they follow the ACAS Code of Practice. The Code provides employers with practical advice on how they should fairly carry out disciplinary procedures for misconduct, the most common cause of dismissal. If an employment tribunal finds that you’ve not reasonably followed the ACAS Code of Practice, it could choose to increase any compensation awarded against you, by up to 25%.

Following procedure is crucial

Any disciplinary process should involve a thorough investigation. The employer must make sure that the employee knows about the case against them and has the chance to respond to the allegations. If the employee raises issues requiring further investigation, then the disciplinary hearing should adjourn to make further investigations. The manager or decision maker, with the support of HR, should then consider all evidence and any mitigating aspects with care. Everything should be taken into consideration before deciding what disciplinary action is appropriate. The employer must be able to show the reason for any dismissal and that it was due to:

1. misconduct,
2. capability,
3. redundancy,
4. breach of a statutory restriction,
5. or some other substantial reason.

An employer can issue a first, second, then final written warning. If an employer has already used those options for that particular employee, they can then look to issue a dismissal.

Basis of an unfair dismissal claim

Generally, for an employee to make an unfair dismissal claim, they must have worked for the employer for at least two years. However, even if they have worked less than two years, this doesn’t necessarily mean that an employer should believe they can dismiss an employee with concerns of it being followed by a tribunal claim lodged against them. To bring a claim for sex, pregnancy or race discrimination, employees don’t have to have worked for two years for the employers. If an employee is sacked, and believes it to be unfair, they can take their case to an employment tribunal and claim damages from the employer. Usually, this means an amount equivalent to the salary and any benefits due during the notice period. If they want more money than what an employment tribunal will award, they can instead pursue their claim in a civil court. In a civil court, there’s no limit to the amount the court can award. However, they cannot bring a claim in both.

Following procedure is key to a fair dismissal

Unfortunately, most employers will have to deal with a disciplinary issue relating to an employee at some point. Especially those who employ a large number of staff. But following fair procedure will help ensure an employer’s decisions don’t come back to bite them later on. If you always investigate fairly and thoroughly, be as transparent as possible and make sure you follow correct procedure, then even if an employee takes their claim to tribunal, the result should be in your favour.