How to avoid unfair dismissal claims

A thorny issue at the best of times, dismissing an employee can raise serious problems if not handled carefully – especially if the employee has worked for you for over 12 months or more because they have then gained unfair dismissal rights.

Statistics show that around 80 per cent of cases that are lost at tribunal are lost because of faults in procedure and small businesses lose twice as often as larger businesses at tribunals. So here are some basic pointers to staying out of trouble.

WHAT IS UNFAIR DISMISSAL?
Wrongful dismissal applies to a breach of contract by the employer. The government established the Industrial Relations Act 1971 (now the Employment Rights Act 1996), which introduced the concept of fairness to dismissals.

In this, there are only five potentially fair reasons for dismissal, and you'd do well to consult this list any time you are thinking of dismissing a member of staff. Here it is!

1. Conduct  - If your staff's behaviour is unacceptable, for example, repeated lateness or drunkenness at work.

2. Capability - If you staff simply do not have the right skills or aptitude to do the job or is frequently absent through ill health. Of course, it’s better to explore training options or a shift in their position before dismissing them.

IMPORTANT! It's also important to note that it’s unlawful for an employer to discriminate against a person because of a disability. You have a duty to make ‘reasonable adjustments’ to workplaces and working practices to make sure that employees with a disability are not at a substantial disadvantage compared to other people.

3. Legality – this applies when your staff member would be breaking the law if he or she continues to work (for example if they lose their driving licence but need to drive regularly as part of their role).

4. Redundancy – If business slows down and there is insufficient work or you have to shut the business, you have a good case for dismissal. It's often wise to seek professional help in these instances though, as the rules are quite complex.

5. Some other substantial reason – Although this is a bit of a loose category, it should be used carefully, as you have to show that the reason was 'substantial'. A major business restructure is a good example.

WARNING! The maximum compensatory award for unfair dismissal currently stands at £63,000.
Tread carefully.

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