What makes a dismissal unfair?

 

This newsletter examines some of the reasons why an Employment Tribunal may find a dismissal to be unfair.   Potential reasons could include the following:-

 

The reason was not one of the potentially fair reasons set out in law such as capability, conduct, retirement, statutory restriction, redundancy and SOSR.

 

Whilst the dismissal one of the potentially fair reasons cited above, it was not fair to dismiss for that reason.    Examples could include, a long-term employee with a previously unblemished record.   The dismissed employee’s  conduct was not that serious to dismiss.   On a different occasion, the employer failed to dismiss an employee for a similar offence.

 

The reason was for an automatically unfair reason such as pregnancy & maternity, family & domestic entitlements, flexible & part-time working, asserting a statutory right and health & safety complaints.  

 

Failure to follow the statutory dismissal procedures currently renders the dismissal automatically unfair.  

 

The dismissal was procedurally unfair.   Was the employee ‘dismissed’ at the commencement of the disciplinary hearing? The employer’s disciplinary procedure was not followed.  

 

There is no greater necessity than the current time to ensure that a dismissal is ‘fair’.   Where the Employment Tribunal judges the dismissal to be ‘unfair’, an award of financial compensation is made with the major element calculated against the ‘unfairly dismissed’ employee’s loss of earnings.   As unemployment levels increase and alternative work is harder to secure, we expect compensation levels to increase.