Unfair dismissal - must you always follow the process?

Unfair dismissal is when an employee's employment contract is terminated and the employer did not have fair reason to do so. Unfair dismissal can also be claimed if the employer did have a fair reason, but handled the dismissal using the wrong procedure. Employees are protected against both these eventualities.

What classifies as unfair dismissal?

Situations when a dismissal is likely to be judged as unfair include circumstances where the employee:

• asked for flexible working
• refused to give up their working time rights - eg to take rest breaks
• resigned and gave the correct notice period
• joined a trade union
• took part in legal industrial action which lasted 12 weeks or less
• needed time off for jury service
• applied for maternity, paternity or adoption leave
• was on any maternity, paternity and adoption leave which they were entitled to
• tried to enforce their right to receive Working Tax Credits
• exposed wrongdoing in the workplace (whistleblowing)
• was forced to retire (‘compulsory retirement’) .

What are the grounds for fair dismissal?

An employer can give one or more of the following reasons for a dismissal:

• Capability - This includes issues such as lateness, absenteeism and persistent absence through illness or injury, either short-term or long-term.
• Misconduct
• Redundancy
• Contravening the law
• Some Other Substantial Reason (known as SOSR).

What is the process for dismissal that the company must follow?

Dismissing employees should be considered to be the last resort and employers should carry out necessary investigations without unreasonable delay to establish the facts. It's always best to try to resolve any issues informally first - often a quiet word can be enough to resolve some problems.

Employers should use a fair and consistent procedure when dismissing employee and should set out in writing the rules and procedures for handling disciplinary procedures for all staff to check. It is also important to ensure that managers understand the rules and procedures.

Employees have the right not to be unfairly dismissed and, in most circumstances, employees will need to qualify by their length of service before they are allowed to make a complaint to an Employment Tribunal. To qualify employees require two years' continuous service, although there is no length of service requirement in relation to 'automatically unfair grounds'.

Dismissing staff: acting reasonably

A dismissal is only fair if you, as the employer, also act reasonably during the dismissal and disciplinary process.

Paul Burton, Head of Frettens' Employment Team, comments "There is no legal definition of ‘reasonableness’, but if you’re taken to an Employment Tribunal they would consider whether you genuinely believed that the reason was fair and that you followed relevant procedures. Reasonableness might also depend on whether the employee could be expected to understand the consequences of their behaviour."

To carry out a fair and reasonable dismissal you should:

• genuinely believe that the reason is fair
• have carried out a proper and appropriate investigation
• have followed the relevant procedures
• have told the employee why they were being considered for dismissal and listened to their views (in England, this does not necessarily have to be in writing)
• allow the employee to be accompanied at disciplinary/dismissal hearings or meetings 
• give the employee the chance to appeal.  

Is it necessary to hold a meeting with an employee before dismissing them for some other substantial reason?

The Employment Tribunal recently considered a case, Hawkes v Ausin Group (UK) Ltd, which looked at this issue.

Hawkes v Ausin Group (UK) Ltd

In this recent case, the Claimant, Mr Hawkes, was a reservist with the Marines. He signed up (voluntarily) for a 7 week overseas call up. His contract of employment permitted a week's unpaid holiday per year for his reserve duties. Mr Hawkes informed his employer that he would need 7 weeks' leave in order to complete the call up. After some enquiries, Ausin Group found out that the call up was not mandatory and did not want him to go ahead with it. Mr Hawkes chose to go anyway. The employer invited him to a meeting where he was dismissed.

Mr Hawkes issued a claim at the Employment Tribunal for unfair dismissal, but the Employment Tribunal found in favour of the employer. It held that the Claimant’s dismissal was fair as he was going to be absent for 7 weeks at a crucial time for the business and the Respondent could not sustain such an absence.

The Employment Tribunal also stated that they had failed to hold a meeting before the decision to dismiss was made, and that they had failed to give the Claimant notice of the meeting, however, this did not render the dismissal unfair. It was relevant that the Claimant had already made the decision to undertake the training exercise, as it was difficult to envisage what a meeting would have achieved.

There was no evidence before the Employment Tribunal to suggest that the Claimant would not have attended the training exercise if he had been warned of the potential for dismissal.

The Claimant appealed but the Employment Appeal Tribunal upheld the Employment Tribunal’s ruling. The Employment Appeal Tribunal made a distinction between this case and a misconduct case where it would usually be considered necessary to hold a meeting in order to consider the employee’s explanations for their conduct.

The full judgement of the case can be read here Hawkes v Ausin Group (UK) Ltd.

Why was the employer justified to dismiss on this occasion?

Paul explains "The process followed in this case was deemed to be not necessarily unfair. It is interesting because it makes it clear that there are circumstances (albeit very limited ones) in which it may be appropriate to dismiss without first holding a meeting. This case is fairly fact-specific and unusual, where the Claimant might perhaps have been better exercising his rights under the Reserve Forces (Safeguard of Employment) Act 1985. The rights under this act are particularly potent, due to the criminal penalties for non-compliance. In terms of the dismissal proceedure and what employers should take from this, do not assume that this will set a precedent, in the vast majority of cases it will be necessary to conduct a meeting in order to establish that a fair dismissal process has been followed."

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.