It’s a legal right of the employees not to be dismissed unfairly. If not handled correctly, such a claim can cause headaches for both employer & employee.
Employees are the most valuable asset for any business. However, sometimes it becomes necessary to terminate the job of an employee due to various reasons. Employers need to be extremely careful in termination proceedings to avoid unfair dismissal claims. Businesses make decisions daily in tough circumstances as even ideal processes can’t run seamlessly. Still, the business owners or HR managers can implement a few strategies to avoid problems with ex-employees.
We have searched for expert advice about ensuring the employer stays within the law while terminating an employee. Let’s see what top legal experts in this field say about unfair dismissals. HR support and employment law firm Ellis Whittam’s legal services director James Tamm says, “Following the correct process is often the key to a fair dismissal”. He also added that “Every potentially legal cause for termination has its own considerations, but a legal process will be decisive to them all”.
Saving your business from unfair dismissal claims begins with putting solid procedures and policies in place. There will be situations when, as an employer, you’ll need to consider terminating an employee. Following the correct procedures, along with taking legal advice, will optimize the prospects of making perfect decisions, including any decision of termination which will stand against a potential claim being charged against your business.
It’s better to get your current policies reviewed by a legal advisor expert in unfair dismissal; they can advise whether they’re up to date with the recent legislation and advise you regarding the processes for dismissal. For avoiding unnecessary headaches and costs, it is essential to handle an unfair dismissal correctly, whether you are an employee or an employer. In the current COVID-19 pandemic, these scenarios are becoming more common.
This article includes some great tips for managing an unfair dismissal correctly.
When Is A Dismissal Called Unfair, Unreasonable, or Injustice?
When an employee is dismissed in an unreasonable, harsh, or unjust manner from their job, it is called an unfair dismissal. In small businesses, unfair dismissals happen due to the inconsistency of dismissal procedures.
There are certain legal rights of the employees regarding the termination of employment. Suppose you don’t get a reasonable justification from your employer for your termination. In that case, there might be some probability that your dismissal was unfair, which means you can file a charge against them, either in the figure of indemnity or some other redress. Claims against unfair dismissal are not so uncommon. The Employment Tribunal saw 12,038 claims of unfair dismissal between 2016 to 2017. To exercise the right of not being dismissed unfairly, one has to apply to the Employment Tribunal.
Reasons Behind An Unfair Dismissal
It’s very important to follow the employee’s contract terms while carrying out a dismissal; otherwise, wrongful dismissal happens. In such cases, the ex-employee is entitled to claim benefits they might have gained if they had remained in their job for a certain time if the termination didn’t occur. The calculation of these benefits takes multiple factors into account. While assessing whether a dismissal is unjust, unreasonable, or harsh, the factors that the commission needs to take into account include, but are not limited to:
Whether the reason was notified to the employee;
Whether the reason for termination was valid or not;
Whether the person was provided with an opportunity for finding a solution;
If the reason behind the dismissal was the employee’s unsatisfactory performance, whether they had been informed about that fact before the termination.
Tips For Handling Unfair Dismissal Claims
Unfair dismissal claims can be a very expensive experience for an employer, so they should be very concerned about avoiding such claims. To alleviate the unfair dismissal claiming risk, employers need to take into account the following tips:
Carry Out A Thorough Investigation:
The employer needs to find out if any inappropriate behavior was displayed in the office in the first place by conducting an investigation. The investigation should be carried out maintaining the fairness of the procedure and relying on authentic evidence. This will help the employer with its legal defense in the occurrence of an unfair dismissal claim.
Keep The Records:
The company needs to keep written records of the termination and disciplinary process with details. The employer’s failure or success while defending a claim of unfair dismissal is largely dependent on the records of the dismissal process with details.
The business shouldn’t wait before it gets too late – employers should respond fast while an employee engages in inappropriate workplace behavior or has performance-related issues. Even after having a legitimate reason for terminating the employee, significant delays by the employer in following the relevant procedures can make a termination/dismissal unfair.
Pre-judgement Should Be Avoided:
The result of the disciplinary proceedings should not be predetermined by the employers. This is necessary for employers to keep a broad mind and sincerely consider the employee’s response to the complaints, including alleviating causes, before deciding to dismiss.
Fairness of The Procedure:
An employee should be given a fair opportunity while the process is going on; this attitude should be maintained throughout the disciplinary process. That means no favoritism should be shown by the employer, and they should be fair in implementing the disciplinary process. The requirements stated by the Fair Work Act 2009 are:
The allegations charged against the employee should be notified to him/her;
The employee should be given an opportunity so that he/she can prove his/her stands against the allegations;
The employee should be warned in written letters prior to termination (except where it is not inappropriate to summarily terminate an employee); The employee should be given the opportunity to afford a support person with him/her while attending the disciplinary meeting.
The settlement process for disputing illegal dismissal claims has been planned to promote efficient and fair authorization of issues between employees and employers. This is necessary to be ready with all the required information needed for the conciliator to assist you in negotiating a legitimate outcome. Depending on which situation the employee is in, this information can include a letter of termination, formal written warnings, or an employment contract. Excluding any necessary facts is not going to help the claim to be fixed efficiently and may lead to more expensive litigation or arbitration.
When the reason behind the dismissal is the employee’s redundancy, the employer should make sure that the charge of redundancy has a genuine basis. When the employer no longer needs a position to be filled by anyone, that position becomes redundant. If an employer fills an employee’s place soon after terminating them due to redundancy, the employer might be exposed to an unfair dismissal claim.
Factors Contributing To The Unfair Dismissal Claims:
Suppose an employee raises illness, discrimination, bullying, or harassment as a contributing factor for their performance issues. In that case, the employer should contact a conciliator to seek legal advice before terminating the employee. Along with an unfair dismissal claim, the employer may also be at the risk of facing a discrimination claim, adverse action claim, or temporary absence claim.
Fault And Punishment Proportionality:
Make sure that the crime or fault fits the punishment. Employers must ensure the fact that they have a definite cause for terminating an employee. Tangible transparency requires that an employer has a legitimate reason for terminating the employee, such as deliberate or willful misconduct or inconsistency in performance.
Loose lips sink ships:
This is crucial to make sure that the causes revolving around the termination and disciplinary procedure remain strictly confidential. It is not reasonable to discuss the causes of the employee’s dismissal and the employee’s work performance with third parties before or after the dismissal. These kinds of conversations or gossip have an adverse effect on workplace culture and may be used as proof against the company in an unfair dismissal claim.
Employers must avoid disruptive and costly unfair dismissal claims by applying the recommendations and tips mentioned above when managing an employee for unfit behavior or miserable performance at the workplace. In case any unfair dismissal claim ever arises, the tips mentioned above will put the employer in a stronger place to defend that unfair dismissal claim.