Unfair dismissal: rights and responsibilities

Unfair dismissal: rights and responsibilities

If government ministers are to be believed, nothing strikes fear into an employer’s heart more than the threat of being taken to the employment tribunal. In fact, if this is so, it is a fear based on an illusion.

The employment tribunal system was set up originally by a Conservative government in 1971 and was intended to give employees better protection from unscrupulous employers. Over the years it has been tampered with and, surprisingly, employees’ rights have actually diminished since then. Any nonsense you’ve heard about EU interference in our employer/ employee relations is just that. Nonsense.

The UK has the most employer friendly employment legislation in the developed world. Readers with experience of employing people in Europe will understand this only too well. And, the Coalition government in 2012 dramatically reduced employee rights further by doubling the amount of time an employee has to be employed before they can claim unfair dismissal to two years.

So does this mean that employers can dismiss people at will until two years’ service?

No. Firstly, they must still abide by the terms of the employment contract, which will have minimum notice periods, and may require certain procedures to be followed. Protection begins even before employment commences for unlawful discrimination; but other than this, yes, an employer can dismiss without following a fair process, provided that it was not because of the employee’s sex, race, religion, sexual orientation, pregnancy or age. Foreign employers are often shocked about how limited the protection really is.

After two years’ service, the protection does kick in. But this does not mean dismissal cannot take place It means that employees must not be unfairly dismissed.

Of course, different people and different employers will have very different ideas on what constitutes unfairness. Clearly, a manager cannot simply walk in one morning and fire someone for no reason. However, if the employer has a justifiable reason they may dismiss provided that the dismissal is a proportionate response and that the employer has followed a fair procedure to come to that decision.

There is enormous scope for opinion on what constitutes a fair reason, but an inability to do the job would of course be fair; so would being disruptive or abusive to colleagues or management. But here again there could be a huge range of opinion.

This is what the tribunals do when an employee thinks they have been unfairly dismissed.

For example, if an employee does not accept that they were failing in the job, they can complain to a tribunal which will hear evidence from both sides and then rule one way or the other. In practice very few cases (less than 10%) go all the way to trial, for in most cases the parties settle beforehand. For those that do, in the majority of cases it is the employer that wins. This may seem unfair, but it should be born in mind that most employers will have access to lawyers, whereas often the employee does not. Further, it must be remembered that it is a fairly natural reaction to feel aggrieved if you are dismissed, even if it was fair.

The area where employers often fall down is by not following a fair procedure. This is all the more surprising because any employer can access ACAS (Arbitration Conciliation Advisory Service) which provides guides, free of charge, that are easy to follow. Employers don’t need lawyers to write their disciplinary procedures. If you are an employer without a professional HR person on staff you would be well advised to obtain this and other codes from ACAS’s website www.acas.gov.uk.

Indeed, not following a procedure that is fairly close to this code is in itself evidence of the offense of unfair dismissal. Check out the example to the right.

Tash Kitsis

Monday, 2 January 2023 at 11:59am

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