If you are eligible to bring a claim of unfair dismissal in the employment tribunal then you will need to show that your employer acted unfairly in dismissing you, in order to win your claim.

Assuming that an employer can show it had a legitimate reason for your dismissal you will need to show that it failed to follow a fair procedure. Employment tribunals are extremely hot on procedure and it is very easy for an employer to fall foul of the requirements and end up dismissing someone unfairly.

For more information on eligibility to bring a claim of unfair dismissal, see our article: Can I bring a claim of unfair dismissal? 

For more information on the potentially fair reasons for dismissal, see our article: What are the five fair reasons for dismissal?

What does a fair procedure look like?

The procedure which the employer should have adopted will depend upon the reason for the dismissal. The five fair reasons for dismissal are:

• Redundancy.
• Misconduct.
• Capability (covering both lack of performance, qualification or skills and sickness/injury).
• Illegality (where an employer cannot continue to employ you legally. For example, because your immigration status has changed or you work as a driver and have lost your driving licence).
• Some other substantial reason (a “catch-all” category which encompasses a broad range of possible reasons including loss of trust and confidence).

If you employer has dismissed you for any other reason (or no reason) then the dismissal will be unfair.

Your employer should have told you the reason for your dismissal; if you are unsure then ask them to confirm the reason in writing.

Check to see if your employer has an appropriate policy in its staff handbook – such as a disciplinary or performance management policy and whether it is following it in your case. For example, were any stated timelines followed?

Dismissals for misconduct

In the case of a dismissal for misconduct then the benchmark for fairness is the ACAS Code of Practice on Disciplinary and Grievance Procedures (the “Code”). Employment tribunals will take the recommendations of the Code into account when adjudicating on whether a fair procedure was followed in an unfair dismissal case involving dismissal for misconduct. The basic principles it sets out, include:

• Issues should be raised and dealt with promptly and meetings, decisions or confirmation of those decisions should not be unreasonably delayed.
• An employer should establish the facts of each case before taking action by carrying out such investigations as may be necessary – not merely in order to establish the “guilt” of an employee but also to look for evidence which may exonerate them.
• Employees should be told of the basis of the problem and given an opportunity to put their case in response before any decisions are made.
• An employee has the right to be accompanied by a colleague or trade union official at any formal meetings (but, not at a purely fact finding meeting).
• An employee should be given the opportunity to appeal against any formal decision.
• Employers should act consistently (i.e. treat employees in the same situation, the same).
• An employer should not pre-judge a situation.
• Where possible, different people should carry out the investigation, disciplinary meeting and any appeal hearing.

Dismissals for other reasons

The Code does not apply to dismissals for redundancy or ill-health or to most dismissal for some other substantial reason. It will be for a tribunal to judge if a fair procedure has been followed in such cases. However, other ACAS guidance, for example in relation to redundancy handling may be persuasive i.e. if the employer has not followed best practice recommendations by ACAS, a tribunal may conclude it acted unfairly (but, it is not required to do so). Basic principles of fairness are likely to be relevant in these cases in any event.

For example:

• An employee should be told that they may be at risk of dismissal and why.
• An employee should be given the chance to argue their case and put forward any mitigating factors.
• An employer should not pre-judge a situation.
• An employer should not act too hastily – for example in the case of an ill-health dismissal they should obtain an up-to-date medical report regarding the employee’s prognosis before deciding to dismiss.
• An employer should first consider alternatives to dismissal such as making reasonable adjustments for a disabled employee to enable them to return to work.

How can we help you?

If you are currently going through a workplace process which might lead to dismissal,  talk to one of our employment law specialists today.