What steps should an employer take to ensure a dismissal is not unfair?

The UK’s unfair dismissal laws are fairly strict and unfair dismissal claims in UK employment tribunals are common. Unfortunately for employers, this has led to a great deal of uncertainty when dismissing employees. The best advice is to get legal advice from an employment solicitor before dismissing an employee. However, following are some pointers to keep in mind when dismissing an employee.

Fair reason

To dismiss an employee fairly, the first and foremost requirement is that there must be a fair reason for the dismissal. Certainly, the employer must ensure that the dismissal is not for an automatically unfair reason, such as a discriminatory reason or in response to the employee asserting their rights under employment law. The potentially fair reasons for dismissal include:

•    conduct
•    retirement
•    capability
•    redundancy

An employer can also dismiss an employee for 'some other substantial reason'. An employer should always get legal advice from an employment solicitor if they are concerned their reason for dismissal could give rise to an unfair dismissal claim.

If the dismissal is a redundancy, employers have additional redundancy rights that must be respected. For example, one redundancy right is that the selection criteria for redundancy must be reasonable.

Fair procedures

In addition to having a fair reason for dismissal, an employer must also follow a fair procedure when dismissing an employee. Whilst the law used to set down a minimum statutory procedure, such as a minimum number of warnings, etc, this has now been replaced with the requirement for the employer to act reasonably.

Reasonableness is not defined in the legislation or case law, but the things that an employer should consider – factors which employment tribunals typically look at – include:

•    Whether the employer genuinely believed that the reason for dismissal was a potentially fair one, and whether it was reasonable for the employer to hold that belief
•    Whether proper investigations were carried out
•    Whether proper procedures were followed
•    Whether the employee was given an opportunity to discuss their proposed dismissal
•    Whether the employee was given the opportunity to appeal the dismissal decision
•    Whether the employer acted within the 'band of reasonable responses' in the circumstances

If an employer follows all of these processes then they are likely to escape liability for an unfair dismissal claim. And, if they followed these processes and yet the employment tribunal still finds the dismissal was unfair, they will at least avoid an otherwise higher compensation payment.

If the dismissal is a redundancy, the employee has additional redundancy rights in terms of the process of selection and notification of redundancy. If it is a collective redundancy, employees have additional redundancy rights, such as to consultation.