5 Tips to Help Businesses Avoid Unfair Dismissal Claims

Dealing with an employee dismissal is one of the most challenging aspects of running a business. Knowing how to avoid a claim is essential for employers.

In the following article, we explain what Unfair Dismissal is and provide 5 tips to help employers avoid it.

What is Unfair Dismissal?

If an employer does not have a good reason for dismissal or does not follow the correct procedure, then the employee in question could be entitled to claim Unfair Dismissal, provided they have attained 2 years of employment service.

When conducting a dismissal there are 5 potentially fair reasons in law that an employer can use as its justification:

• A conduct-related reason
• A reason related to the employee’s qualifications or capabilities
• A redundancy-related reason
• Because a statutory duty or restriction prohibited the employment from continuing
• Some other substantial reasons such as personality clashes or third-party pressure

If an employee successfully alleges they were dismissed for one of the following reasons, to name a few, then the dismissal would be deemed automatically unfair regardless of how much employment service they have accrued:

• Requesting flexible working
• Asking for maternity/paternity leave
• Joining a Trade Union
• Needing time off for jury service
• Exposing wrongdoing in the workplace (whistleblowing)
• Refusing to give up working time rights

It can be tempting for an employer to assume that avoiding Unfair Dismissal claims is easy once they know the legally fair reasons. However, the procedure followed is just as important and is often where employers fall down. Ensuring that an employee is involved throughout the process, is allowed to be accompanied to meetings and is given the right to appeal any outcome are just some examples of key procedural requirements.

5 Management Tips to Avoid Unfair Dismissal Claims

Below are 5 tips to help employers manage dismissals so that the potential for a claim is minimised:

1. Resolve all issues as soon as they occur

Tackling issues with employees as soon as they occur is an effective measure to prevent them from escalating. Try to resolve problems as and when they arise by holding informal meetings and make it clear that a more formal process could be used if the issue is not resolved. Involving your HR or legal team at an early stage is advisable.

2. Use probationary periods effectively

Depending on the wording of the contract, if there are legitimate concerns about a new employee, it may be possible to extend the probationary period or dismiss them at the end of it, before they accrue two years of service.

3. Conduct regular appraisals

Conduct regular appraisals with employees to give an honest assessment of their performance and allow them to raise any concerns. Do not give overly flattering performance reviews if they are undeserved as it could make proving a fair dismissal more difficult. Ensure there are written records for each appraisal.

4. Be aware of how stress affects performance

Stress in severe cases could be classed as a disability in law or could lead to other disabilities. If stress could be a reason for an employee’s poor performance then involve HR immediately as extra care needs to be taken. Also be mindful that stress is often a factor in Constructive Dismissal claims, where an employee has resigned because of the employer's behaviour.

5. Avoid Victimisation

If an employee has raised a grievance or claim in the past, ensure that any further allegations against that employee are dealt with fairly and without influence from the previous issues, to avoid a claim of Victimisation.

Next Steps

HR and Employment Law responsibilities for a business can be a significant challenge. By outsourcing to a team of Employment Law specialists, businesses can ensure that:

• Risk is prevented through greater awareness of the correct approach.
• Management time spent on disputes is reduced.
• Employee/employer relations are improved.

With the help of specialists, employers can take practical and considered steps to minimise the risk of Unfair Dismissal claims.

Frequently Asked Questions