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Unfair Dismissal

Unfair Dismissal

In common with other forms of legal dispute, most unfair dismissal claims do not reach a final hearing. To maximise your chances of a sensible resolution, you need experienced and dynamic employment law advice. IBB Solicitors offer this.

The legal test

An employer cannot simply dismiss an employee just because it feels like it.  There must be a genuine reason. There are 5 potentially fair reasons for dismissing an employee, which are:

  • conduct;
  • capability or qualifications;
  • redundancy;
  • that the employee could not continue to work in the position which s/he held without contravention (either on his/her part or on that of the employer) of a duty or restriction imposed by or under an enactment; or
  • some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

Capability’ means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and

Qualifications’ means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

In determining whether the dismissal is fair or unfair (having regard to the reason shown by the employer) an employment tribunal will consider:

  • (having regard to the size and administrative resources of the employer’s undertaking) whether the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and
  • equity and the substantial merits of the case.

Why procedure is often as important as substance when employees are dismissed

Most employees understandably focus, having been dismissed, on whether their employer has acted fairly. The employee normally looks at the substance of the issue. However, an employment tribunal is not permitted to look subjectively on whether an employer has perhaps overreacted when dismissing. The legal test is clear – it is whether the employer has acted within a range of reasonable responses. That range may include the employer who is quite lenient but also the employer who takes a fairly harsh view on any given conduct.

In short, challenging an employer’s decision to dismiss, except where, objectively, it is clear that no reasonable employer would have dismissed, is difficult. However, there is a second aspect to fair dismissals, which often helps employees more. The employer must also have acted in a procedurally fair way. If the employer fails in this regard, the employee may succeed with an unfair dismissal claim, even if the dismissal may have been otherwise fair.

Investigating procedural fairness with dismissals

One of the first things we look at and advise clients on is whether the employer has overlooked or dealt wrongly with process before dismissing. It often means that we can offer an opinion on prospects of a successful unfair dismissal claim at an early stage. Where employers are ignorant of fair process or have ignored it, we can assist clients with preparing an appeal and negotiating a settlement which takes away the stress and uncertainty of pursuing a claim, often where the employee also has financial uncertainty and stress if he or she is now without a job.

It is important to remember that dismissals occur for many reasons – possibly capability, which can include work performance issues or long-term sickness absence, conduct, such as fighting at work, breaching company rules, theft but it also includes redundancy. Many employers, however well-intentioned, make errors in having a fair process for consulting with at risk employees or in the selection process itself. Claims for redundancy based unfair dismissal are just as legitimate as for any other reason for dismissal.

Damages for unfair dismissal – the need to mitigate loss

No two situations or cases are the same but it is also true to say that on average tribunal awards for compensation for unfair dismissal claims are less than £10,000.00. This is another reason why it is often worth trying to keep legal fees down and being open to an early resolution.

The primary reason why most claims are relatively low value is that unfair dismissal is fundamentally loss based rather than compensatory. Aside from contractual entitlements to notice or statutory redundancy, it is up to an employee, regardless of how unfairly he or she has been treated, to mitigate their loss by actively seeking new employment post-dismissal. Depending on the circumstances of the dismissal, this may not always be easy.  Good legal advice is important in helping to assist with finding alternative employment.

Complications in this area can occur where the employee, as a consequence of being unfairly dismissed, is unfit for work, perhaps due to stress or depression, or where prospects of being able to get work are impacted by being dismissed.

Contact our specialist solicitors today

IBB Solicitors provides expert advice to employees on a variety of employment law issues including unfair dismissal, sex discrimination, race discriminationrestrictive covenants and employment tribunal claims.


Marc Jones

Marc Jones

Partner marc.jones@ibblaw.co.uk 01895 201719