Despite the very best efforts of an employer there will, in all likelihood be a situation where an employee will make a claim for unfair dismissal.  We’ve seen a dramatic increase in such claims over the past decade and despite Government efforts to reverse the trend it’s likely ex-employees will simply become more creative in their approach to seeking compensation.

If you find yourself in the situation of defending such a claim you are advised to call a qualified and experienced lawyer.

There are 5 potentially fair reasons to dismiss an employee. Even where one of those reasons genuinely exists, it will still be necessary for your business to show that it acted reasonably in treating the reason as a fair reason to dismiss.

At the very least a fair procedure will be necessary in order to convince an Employment Tribunal that your business acted reasonably. The appropriate procedure will depend on the reason for dismissal. Prior to any dismissal consideration should be given to the minimum statutory requirements of the dismissal and disciplinary procedures which apply to any situation in which dismissal is contemplated. The procedures are not limited to misconduct situations and apply to all 5 reasons listed below.

The brief procedures outlined below are by no means comprehensive as to what a fair procedure would involve but provide you with some idea as to the issues your business should be considering before taking a decision to dismiss.

The 5 potentially fair reasons for dismissal are:-

• Conduct
• Capability and qualifications
• Redundancy
• Illegality
• Some other substantial reason

Conduct

The employee should be given the opportunity to defend the allegations against them in a properly conducted disciplinary meeting. The employee will be entitled to bring with them a fellow employee or trade union representative. It will not be appropriate to dismiss for the first offence except in the most serious disciplinary matters (for example, theft or fighting).

Capability and qualifications

This reason for dismissal encompasses both incompetence and sickness. The procedure your business must use will vary greatly depending upon which reason is being used.

A fair procedure for incompetence will include warning the employee about their standard of work and offering the appropriate assistance and training. The employee should be informed of the standard of performance required and when that standard should be achieved and should also be warned of the consequences of failure to improve before any action is taken. This can become quite a complex and lengthy process, potentially involving several warnings and advice should be sought.

Where an employee is sick a thorough investigation into the sickness should be conducted. Management of long term sickness absence can be a complex exercise and advice should generally be sought (for example consideration should be given to the impact of the Disability Discrimination Act). Whether dismissal will be fair will very much depend upon whether your business could reasonably be expected to wait any longer for the employee to return. Accordingly a prognosis ought to be obtained from a medical expert (which will require the employee’s written consent).

Illegality

If it becomes illegal to employ an employee, for example, if a truck driver loses their driving licence it may be fair to dismiss. Prior to dismissal your business should consider whether it is possible to redeploy that individual or if there is any other way to maintain their employment.

Some other substantial reason

This is a catch all category which is often used for business reorganisations which involve making changes to certain terms and conditions of employment. This category has also been used to justify dismissals where there are personality clashes. The procedure which must be followed will much depend on the ‘substantial reason’ being given. For example, if you wish to dismiss an employee because of a personality clash dismissal is unlikely to be fair if your business cannot show it adversely affects your operations and if your business has not given any consideration to redeploying that employee to another department or attempting to settle the dispute between the two relevant individuals.