The decision to dismiss an employee after he received a final warning about his capability was both fair and reasonable. That was the decision of the Employment Appeal Tribunal in a case involving Mr Fallahi v TWI Ltd. Fallahi began working for TWI as a senior project leader in June 2014. In February 2015, the
Redundancy & Dismissal
Terminating an employee’s employment is never an easy decision to make, whether on an individual or collective basis and it is also not without risk. We can help you limit and manage any exposure to your business, giving clear and practical guidance on the process and procedure required to effect a “fair” dismissal.
Talk to one of our friendly and experienced team on 01582 514000
A dismissal can occur in three different ways:
- The employer terminating an employee’s contract with or without notice;
- The employee resigning with or without notice in circumstances where they are entitled to do so because of the employers conduct (constructive dismissal; and
- Expiry of a fixed-term contract.
There are five potentially fair reasons for an employer to dismiss an employee: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction and “some other substantial reason” (SOSR). As well as relying on one of the potential fair reasons an employer must also satisfy a Tribunal that they acted reasonably in treating that reason as sufficient to justify dismissing the employee.
There are also some cases where a dismissal will be atomically unfair. For example, an employer cannot select an employee for redundancy, or dismiss them, if the main or sole reason for this is that they are pregnant, on maternity or paternity leave, or exercising any of their statutory rights in respect to this. It is also automatically unfair to select or dismiss an employee for any reason connected to them:
- Making a protected disclosure (whistleblowing);
- Refusing to work or undertake certain duties due to health and safety concerns;
- Trying to assert statutory employment right;
- Having part-time working status;
- Participating in trade union activities, including taking part in industrial action or acting as an employee representative; or
- Requesting to work flexibly.
Where an employee must usually have two years’ service to bring a claim for unfair dismissal, most claims for automatic unfair dismissal can be brought irrespective of the length of service. It is therefore very important that employers seek legal advice, even where the employee being dismissed has less than two years’ service.
Every case is different and we tailor our approach accordingly. Our employment solicitors ensure that dismissals are carried our fairly and effectively to avoid the risk of disputes and litigation.
In respect of redundancies, we can advise you through the consultation process, assist you in applying a fair selection process, considering alternative employment and ensuring that employees receive the correct payments on termination. Following the correct redundancy, procedure minimises the risk of wrongful dismissal, discrimination or unfair dismissal claims.
If you are proposing to make 20 or more employees redundant at one establishment within 90 days, you have an obligation to inform and consult with employee representatives. If you fail to comply with your collective consultation obligations this can be expensive, with protective awards of up to 90 days’ pay for each affected employee. It is therefore important to seek legal advice as soon as possible if your business is considering redundancies to ensure you have fulfilled your legal obligations. We can also provide briefing notes, bespoke letters and scripts to assist you with any redundancy process.
We regularly advise upon complex senior exits and severance packages which can involve a more tailored approach to reduce to risk of disputes.
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