Ensure that there is a 'fair' reason for the dismissal, and that you acted reasonably in dismissing for that purpose.
There are only six potentially fair reasons which lawfully justify dismissal, and if you want to prevent a disgruntled employee from bringing an unfair dismissal claim, you must be able to establish at least one of these. The reasons are:
- the conduct of the employee;
- the capability or qualifications of the employee. This is most likely to be relevant in cases of sickness or other long-term absence, or where the employee lacks the necessary skills or qualifications for doing the job;
- illegality. This might apply where, for example, someone has been employed to do something illegal, or is not legally entitled to work in the UK;
- redundancy;
- 'some other substantial reason'. This means any other substantial reason which justifies dismissal - for example, pressure from a third party customer.
- Where the dismissal is of an employee who has reached 65, so the dismissal is for the purposes of the worker's retirement, and he has been notified of his right to request to work longer (as required by age discrimination law).
You must also be able to establish that you followed fair procedures (see question three).
You must observe the current statutory dismissal, disciplinary and grievance procedures and, in particiular, the three-stage 'standard' procedure to be used in almost all dismissal cases, which requires that:
- the problem must be set out in writing and the employee must be invited to attend a meeting to discuss it;
- there must be a face-to-face meeting to discuss the problem, after which the employer must inform the employee of the decision and confirm the right of appeal; and
- an appeal must be arranged, if the employee requests it.
In rare cases, this may be abbreviated to a two-stage ('modified') procedure (see Gross Misconduct). In some very specific cases where the employer cannot continue to employ the employee for reasons beyond the employer's control (for example, sudden and unexpected closure of a business or where there is a credible threat of violence), the minimum procedures do not apply (see Statutory disciplinary and grievance procedures).
Where the minimum statutory requirements do apply, however, failure to observe them (or to observe them adequately) could lead to an automatic finding of unfair dismissal where a former employee with at least one year's service makes a complaint to the Employment Tribunal. In one case the Employment Appeals Tribunal found that an employee had been dismissed in breach of the statutory procedure - and therefore unfairly - because his employers observed their own (more sophisticated) procedures to his detriment, refusing to hear the appeal he had told them he wanted to make, because he did not present his grounds of appeal in accordance with their own procedures. All the statutory procedures require is that the employee should inform his employers that he wants to appeal.
Such a breach could lead to an increase of between 10 and 50 per cent in the compensatory award (subject to the statutory cap - currently £63,000) to the employee and a minimum basic award of four weeks' pay.
