Lawyers Leicester

UNFAIR DISMISSAL – LEICESTER SOLICITORS

Unfair dismissal

Before we can understand what unfair dismissal is, it makes sense to state when a dismissal is likely to be seen as fair.

What is a fair dismissal?

• Misconduct such as fighting, stealing
• The employee acted incompetently over a series of incidents or during one particularly serious incident.
• If the employee is genuinely ill on a regular basis and deemed unfit to work, then the dismissal is potentially fair, although several factors need to be considered to determine this.  Did the employer offer alternative work or make reasonable steps to accommodate the employee?  There is a potential overlap with disability discrimination law here
• Taking into account one of the above is satisfied, that the procedure adopted by the employer before dismissing is legally satisfactory

Unsuitable conduct

There is a wide range of conduct that may warrant a legitimate dismissal of an employee. The first point of reference for any employer should be it’s own contract of employment which ought to describe unacceptable employee conduct. The employer should adhere to it’s own contract for obvious reasons. Not all instances of unacceptable behaviour will be usable for dismissal for a first offence (”summary dismissal”) and if not a summary dismissal situation, the employee would generally have had to have been given formal warnings through to a final warning previously.  Examples of unacceptable conduct might include:

• Criminal actions by the employee, such as theft, fraud, forgery, taking bribes etc.
• Drinking or taking drugs at work.
• Abusive behaviour directed to anyone connected with the business, including colleagues and customers.
• Accessing and disseminating confidential information about the company.
• Computer hacking.
• Being absent from work on a regular basis without a legitimate reason.
• Being late for work on a regular basis.
• Wearing unsuitable clothing for work.
• Unsuitable behaviour during working hours which impacts on the employee’s work.
• Unsuitable behaviour outside of an employee’s working hours which affects the employee’s job or impacts on the company’s reputation.

Indeed, there are many examples of unacceptable conduct.  Whether it warranted dismissal or not depends on the surrounding circumstances, the type of conduct, the severity of it, how other employees involved were treated etc.  The employer must look at the conduct as thoroughly as possible and have strong evidence that the employee was involved, although employers cannot be expected to prove anything beyond reasonable doubt.

Redundancy

Employers must have fair procedures in selecting employees for redundancy and once implemented they must be stuck to.  If the redundancy is based on certain things, such as an employee taking maternity leave, then this will automatically be considered as an unfair dismissal.

Other reasons

As already established, there are many reasons as to why an employee could be dismissed.  If, for example, an unacceptable lack of flexibility is shown by the employee in adapting to a developing business, a dismissal based on this could be considered fair. Or perhaps an important client has requested that an employee is dismissed.  If the client’s reasons for requesting this were not unfair (not discriminatory, for example) then this could be a fair dismissal.

Dismissal procedures

In dismissing an employee, the employer must use a fair procedure. If fair procedures are not used, then the dismissal will be considered unfair. A range of factors will be taken into account.  A tribunal will commonly consider whether:

• The employee was given a fair hearing
• Evidence was used at the hearing and the nature/strength of it
• Other employees in a similar position were treated in the same way
• The employer considered use of warning
• The employee had appropriate representation at the hearing e.g. a Trade Union official
• The employee had the opportunity to appeal the decision
• The procedure was carried out in the same way as it was in the past
• The employee’s overall service was taken into consideration