Your business must establish clear, up-to-date policies and procedures regarding disciplinary or unfair dismissal matters, which staff have access to. Also keep records of reviews or discussions (whether face to face or otherwise), emails threads etc. that occur as a result.
Just having these policies in place doesn’t guarantee protection from unfair dismissal claims; other considerations must also be considered.
1. Reasonableness
Employers can benefit from following Acas Code of Practice guidance when developing their disciplinary procedures and policies to help defend them against unfair dismissal claims. Any disciplinary actions should follow a clear pattern of warnings before dismissal and provide employees with options to appeal decisions they feel were unfair.
Workers can be dismissed fairly for conduct violations such as fraud or an accumulation of minor issues such as persistent lateness or poor performance. A worker could also be fired due to incapacity due to long-term illness or refusing to accept changes to contractual terms.
Reason 4 may also be considered reasonable: “other substantial reasons”, which encompasses anything that comes to light – for instance a prison sentence being handed out or their work bringing disrepute upon their employer – or rejecting an offer of alternative employment.
2. Fairness
The second criteria is fair dismissal, including making sure the procedure used to fire an employee was reasonable for both their size and administrative resources available.
Here, the Acas Code of Practice on Disciplinary and Grievance procedures becomes a crucial factor. This standard provides minimum standards that employers must abide by in order to be considered reasonable, so an employment tribunal will examine if alternative approaches have been considered before dismissing an employee.
Detailed plans may also consider discussing possible solutions with the employee and providing written evidence of this dialogue, and exploring whether another role exists within the business to accommodate for these circumstances.
3. Conduct
Some reasons for dismissal can be considered automatically unfair, such as those related to discrimination or health and safety violations. When this happens, an employee can claim compensation without necessarily having worked at your company for two years prior.
Definition of misconduct should be clearly laid out within policy documentation and company guidelines; examples include dishonesty, breaking company rules, bullying or disrupting fellow workers, excessive unexplained absences and poor job performance by objective measures. It’s important to keep in mind that tribunals cannot act as substitutes for their employer when reviewing whether decisions fell within an acceptable range that any reasonable employer might adopt as responses.
To demonstrate this point, it’s a good idea to gather as much evidence as possible, such as documents, conversations with individual employees or email threads.
4. Capability
Employers have the right to terminate an employee if they believe they cannot perform their duties, provided this decision is fair, based on objective evidence, and adheres to reasonable procedures. These concerns could relate to either their skills or abilities for performing the role at hand.
The tribunal will assess the length of time between an employer being made aware of a capability issue and when an employee was dismissed and whether more could have been done to find alternative work opportunities for them. They will also consider options like flexible working, redeployment or hiring temporary staff as possible solutions.
Employers addressing capability concerns should follow a fair process and gather sufficient written evidence of an employee’s poor performance or incapability before making their decision to dismiss.
5. Redundancy
Redundancy can be an acceptable reason for dismissal in certain instances; such as where a company needs to cut costs after taking over or selling off some roles.
Employers in this situation must consult with staff and find alternatives, while using a scoring system that they can justify how scores were determined.
Employers owe employees compensation; however, an employment tribunal can reduce this amount if it deems that an employee’s conduct contributed to their dismissal (known as Polkey reduction). It could be argued that an employer dismissed an employee unfairly due to health and safety or whistle-blowing concerns;
