Employees in general have the right not to be unfairly dismissed. However, you can lawfully dismiss an employee at any time as long as it is for a fair reason, and you acted reasonably in all the circumstances.

In this article Chris Wiper, Senior Partner at Close Thornton Solicitors in Darlington, explains the 2 stage test which any claim for Unfair Dismissal must go through.

Was the dismissal for a fair reason?
The following is a list of fair reasons for dismissing an employee and points that an Employment Tribunal will consider.

1. Capability
This is split into several areas.

Qualifications - does the employee have the necessary qualifications for the job and is a particular qualification actually needed for this type of job?

Incompetence - this can be repeated incompetence or a very serious individual incident. The tribunal will consider whether the employee had been trained and whether they had been given warnings?

Health - for an employee who is genuinely ill on a regular basis, the tribunal will consider what the illness was, how long would the employee be off and whether they had been considered for alternative work?

2. Conduct
There are many possible situations where an employee’s conduct may have given the employer good reason to dismiss them. Here are a few:

- theft
- corruption, including taking bribes
- being drunk at work
- abusive behaviour
- leaking confidential documents or information
- constantly late for work
- even telling your employer excactly what you think of them.

The above may be persistent behaviour for which an employee has received earlier warnings or they may be individual incidents that are of a serious nature.

The tribunal will also consider the following:

a) Was the conduct of the employee looked into thoroughly?
b) Did the employer believe that the employee committed the offence?

3. Redundancy
The employer must have a fair procedure for selecting who is going to be made redundant. Once the method has been decided upon the employer must stick to it. One of the most commonly used methods is "last in - first out".

4. Breaking the Law
For example a foreign worker whose work permit has expired, to continue to employ them would break the immigration laws. However, the employer should check whether the situation can be made legal before dismissing the employee.

5. Any Other Reason
This is very wide and is used to cover virtually every other possible reason. For example, where a business is being reorganised and some employees refuse to reorganise along with it or where they are not longer considered suitable. For example an employee who refused to use computers when they were being installed despite training was dismissed, this was said to be a valid reason to dismiss. It can include dismissing an employee because an important client demands it.

Fairness of Procedure
The test here is whether the employer used a fair procedure and was it reasonable for the employer to finally decide to dismiss the employee once the procedure had been carried out.

Any Employment Tribunal would consider some of the following:

1. Was the employee given a fair hearing by the employer?
2. What evidence was used at the hearing and was it all used?
3. Had the employee done this before?
4. Did the employer consider warnings, were these used in the past?
5. Could the employer have disciplined the employee instead of dismissing them?
6. Was the whole procedure carried out in the same was as previous procedures, if not how did it differ and why?

This guide is only a summary and does not purport to be comprehensive or to offer legal advice. In the case of a specific matter, it is recommended that professional advice is sought.

For further information on any aspect of Employment Law please contact Chris Wiper, Senior Partner at Close Thornton Solicitors on 01325 466461.

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