Unfair dismissal can be a scary claim if you’re an employer who’s let a staff member go for completely valid reasons. With COVID-19 still in the air, a lot of people are being laid off work, and claims for unfair dismissal are more prevalent than ever.
If the employee even feels like they’ve been dismissed unfairly, you could find yourself defending your decision at an employment tribunal. To avoid lengthy court battles, it’s often easier to just sign settlement agreements with your employees to deal with the issue out of court.
However, it’d be better to avoid unfair dismissal cases altogether. In this post we’ll give you an overview of what unfair dismissal is, reasons why an employee might claim it, some simple steps you can take to avoid it, and how COVID-19 dismissals fall under current UK law. To avoid things getting messy, read on…
What is Unfair Dismissal?
Unfair dismissal law in the UK falls under the UK labour law, requiring fair, just and reasonable treatment by employers. Under the Employment Rights Act 1996, employees need to be given a fair reason for why their employment was terminated. This may be based on their capacity to do their job, their conduct, and whether their position has become economically redundant.
Other factors play into whether unfair dismissal has taken place, such as:
- What their employment status is: if they’re not an employee, then they can’t be unfairly dismissed.
- How long they’ve worked for you: if an employee has worked for you for less than 2 years, it’s unlikely they’ll be able to claim unfair dismissal.
- If the law says their dismissal was fair: then it’s completely redundant.
The unfair dismissal qualifying period is three-months or less. So, the employee will have to make a claim within that time after being dismissed for it to be valid. Don’t worry about any employees claiming unfair dismissal beyond that point; they won’t be back in two years looking for a pay-out.
The penalty if you’re found to have unfairly dismissed an employee is either being ordered to reinstate them (give them their job back), re-engage them (re-employ them in a different job), or pay them compensation based on their age, gross weekly pay, and length of service.
Constructive Dismissal
Constructive dismissal falls under a similar umbrella to unfair dismissal. This is where an employer makes the working environment so hostile, that the employee is forced to dismiss themselves. In effect, this counts as a dismissal in itself.
Unfair dismissal has to be quite serious for it to be considered constructive dismissal. Some examples would be:
- Refusing to pay your employee
- Demoting them without good reason
- Forcing them to accept unreasonable changes to how they work, e.g. making them work night shifts when they have a day work contract
- Letting other employees harass or bully them
- Not providing enough support for you to do your job
Make sure your conduct never crosses this boundary, forcing an employee to claim constructive dismissal.
Reasons an Employee Might Claim Unfair Dismissal
At this point, it’s a good idea to give you some unfair dismissal examples so you know what kind of claims an employee can bring against you. Common scenarios where an employee might claim unfair dismissal are if you dismissed them for:
- Asking for flexible working
- Refusing to give up their working time rights, e.g. taking rest breaks
- Resigning and worked the correct notice period
- Joining a trade union
- Taking part in legal industrial action that lasted no more than 12 weeks
- Needing time off work for jury service
- Applying for maternity, paternity or adoption leave
- Being on leave they were entitled to be on
- Exposing wrongdoing in the workplace, also known as whistleblowing
- Taking action about a health and safety issue
If any of your employees are in one of these positions, it’s legal to dismiss them as long as it’s not for these reasons. For example, if an employee does something fireable whilst on maternity leave, you can still dismiss them.
You can also be tried for unfair dismissal if you discriminate against an employee. For example, if an employee has reason to believe any of the following reasons influenced your decision to dismiss them, they could challenge the dismissal:
- Pregnant or on maternity leave
- Member of a particular race, ethnicity or country
- Married or in a civil partnership
- A man or a woman
- Disabled
- Are homosexual, or bisexual
- Transgender
- Have a particular set of beliefs or religion
- Too old or too young to work for you
Again, you are allowed to dismiss people with these characteristics, as long as it isn’t the reason for the dismissal.
Steps to Take to Avoid Being Accused of Unfair Dismissal
First off, it’s important you take the necessary steps before you decide to dismiss an employee. This includes making sure that the reasons for dismissal are valid when you explain them to the employee. So, make sure that you’re dismissing an employee based on their capability or conduct, redundancy, or because of something that prevents them from doing their job, such as a driver losing their driving license.
Even if you have a fair reason, you need to make sure that you act reasonably during the dismissal and disciplinary process. You must set out your dismissal and disciplinary procedures in writing, and make sure that all members of staff are aware of them. These disciplinary rules must follow the Acas code of practice on disciplinary and grievance procedures.
Steps to Take if You’ve Been Accused of Unfair Dismissal
If you’ve put all these provisions in place, and you still find yourself at an employment tribunal, it’s a good idea to know what the court will decide is ‘reasonable’ when it comes to dismissal. The court will consider whether you:
- Genuinely believed your reason for dismissing the employee was fair
- Carried out all the proper investigations that made you come to your decision
- Followed the relevant dismissal procedures
- Told the employee why you were dismissing them and listened to their views
- Allowed the employee to be accompanied at the hearing
- Gave the employee the opportunity to appeal the dismissal
If you can satisfy these requirements, you have a much better chance of not being found guilty of unfair dismissal.
Unfair Dismissal and COVID-19
Some industries have had to make big decisions on whether they can retain their members of staff, or risk closing altogether. If you lay someone off because you are struggling to make ends meeting during the COVID-19 crisis, the usual laws of unfair dismissal apply.
Your best option, in these cases, might be to give them redundancy, especially if they’ve been working for you for more than two years. You can do this either during or after furlough leave, but you still have to prove the redundancy was fair, and that there was a genuine business need for it.
There are other employer concerns about bringing people back into the office during the ease of lockdown. An issue which may be seen across the board might be dismissing someone for raising a COVID-19 health and safety concern. This is considered automatic unfair dismissal which means, even if the person hasn’t been employed by you for two years, they can still make a claim.
We briefly mentioned constructive dismissal in an earlier section, one where the employer’s unfair conduct forces their employee to resign. In the Health Protection (Coronavirus) Regulations 2020, “the incidence or transmission of Coronavirus constitutes a serious and imminent threat to public health”. This means that an employee can resign on the grounds of the workplace being unsafe if you haven’t made the provisions to protect them from COVID-19.
There are other ways the Coronavirus could be relevant in unfair dismissal, but just remember that it is considered a health and safety issue. So, the usual rules of unfair dismissal laid out in this article apply.
Avoid Unfair Dismissal at All Costs!
This concludes our article on how to avoid being accused of unfair dismissal in the COVID-19 area. We managed to cover what unfair dismissal is, reasons an employee might file for it, steps you should take to avoid a tribunal, and how these rules might affect our current COVID-19 climate.
We spent a lot of time talking about unfair dismissal more generally, because those rules apply to COVID-19 too, despite the huge alterations in the working world. So, be sure you’re sticking to these lawful regulations, and you should see no repercussions. We hope you learnt something from this article, and can avoid being called to a tribunal for unfair dismissal in the future.
