One of the main queries I get asked by businesses, regardless of its size, is if they can dismiss an employee without the risk of the individual bringing forward a claim for unfair dismissal.
Can you fire an employee risk-free?
The short answer is that there's always the potential risk of a claim being lodged against the business - it's just a case of minimising the risk and strengthening the employer's position.
There are five potentially fair legal reasons for dismissal:
• Misconduct
• Capability
• Redundancy
• statutory duty for example not having a work permit,
• A ‘catch all’ reason, known as ‘some other substantial reason" or SOSR’.
When can employee’s claim unfair dismissal?
In order to bring a claim for unfair dismissal, any employee must ordinarily have more than two years’ continuous employment. Therefore many employers choose to dismiss an employee before they reach this length of service to prevent a claim, without the need to follow any procedure.
But business owners should be warned. This time constraint does not apply to situations where the dismissal has taken place due to cases involving whistle blowing, disclosure of health and safety issues, or discrimination. For this reason, where an employee has less than two years’ service, the employer must make sure they have dismissed for legitimate reasons. Indeed, individuals can lodge a claim for discrimination before even being employed, for example if they were discriminated during the recruitment process.
Ensuring all dismissals are fair
If an employee has exceeded the two year length of service, it is vital that any dismissal, for whichever reason, is handled in a fair and reasonable manner and should comply with the relevant legislative and ACAS requirements.
Employers not up to date with the correct procedures would not only find themselves in a weaker position in defending a claim brought against them, but any compensation awarded could be increased by a maximum of 25% for failure to follow such procedures.
How to avoid unfair dismissal claims
If a claim is brought against an employer you, it is likely to consume large amounts of time and effort to defend, not to mention the often significant amounts of compensation payable to employees whose complaints are upheld at tribunal.
Because of this, it is strongly recommended that if you are considering dismissing an employee, or if a claim is lodged against you, that you seek legal advice at the earliest opportunity to protect your business in the best way possible.
Talk to Howells Solicitors today
If you would like to discuss any aspect of unfair dismissal in more detail, please get in touch and our professional team will be able to assist you. Call us today on 0808 178 2773.
