When it comes to dismissals, there are right and wrong ways of doing this. If you were dismissed and feel that it was unfair, it is important that you understand what makes a dismissal fair or unfair. Getting this wrong can land you in an employment tribunal facing costly claims.
What Is A Fair Dismissal?
The key to a valid dismissal is that there is a valid reason for the dismissal. Another key to a fair dismissal is that the employer was acting reasonably in the circumstances. If these key elements are missing from the dismissal, it can be seen as unfair.
For a dismissal to be legally considered fair, the employer will need to show that there was a reason for the dismissal. This could be related to the conduct of the employee, the employee’s capability or qualification for the job or a redundancy due to the business closing. If there are statutory restrictions to the job such as having a driving license and the employees no longer meets these restrictions dismissal is considered fair in the circumstances. If there are other substantial reasons for dismissal such as a prison sentence, the dismissal will be considered fair.
It is important to note that having a valid reason for dismissal is not enough. The employer will also need to have acted in a reasonable manner at the time. The valid reason will need to bear enough weight to show that dismissal was the only course of action which could be taken in the circumstances.
What Is An Unfair Dismissal?
A dismissal is considered unfair if the reason for the dismissal does not come under the scope of 5 potential reasons for dismissal. If the employer did not follow a set dismissal process or a fair disciplinary policy, the dismissal will also be considered unfair. To determine if the employer acted in a reasonable manner for the circumstances particularly in misconduct or performance related cases, you will need to look at the ACAS code of practice on disciplinary and grievance procedures.
An employment tribunal will take this into account when they look at whether or not an employer acted reasonably. If the employer is found to have acted unreasonably, the dismissal will be classed as unfair. It is important to note that an employee with 2 years of service will be able to submit a claim to an employment tribunal for an unfair dismissal with the help of Anderson Gray unfair dismissal lawyers Brisbane.
What Is An Automatic Unfair Dismissal?
There are some cases where a dismissal is automatically considered unfair. These dismissals will be where an employee is selected for redundancy or dismissal based on them being pregnant, on maternity leave, on paternity leave or exercising any of their other statutory rights. Automatic unfair dismissals are also those where an employee is dismissed for whistleblowing, being a part-time employee or being a member of a trade union. In cases of automatic unfair dismissal, it will not matter how long you have been an employee when it comes to the tribunal.