Did you know that since the fees for tribunals were waived in July 2017, there has been a 90% increase in employment tribunal claims?
To protect yourself from risk of being taken to court for unfair dismissal, it’s important to know the difference between ‘fair’ and ‘unfair’ dismissal, as well as ‘wrongful’ and ‘constructive’ dismissal.
Do you know the differences? What about the relevant laws, and codes of practice? If you’re unsure of any of these and don’t want to risk paying thousands of pounds in compensation to employees taking you to tribunal, this blog will help.
What is Fair?
When you need to carry out a dismissal, it’s important to ensure that it’s fair on the employee not only for them, but also for the reputation and integrity of your organisation.
One of the first things you, as an employer, must understand is the differences between ‘fair’ and ‘unfair’ dismissals. ‘Unfair’ dismissal is usually where an employee was dismissed, for example, because of pregnancy; a family situation such as time off for dependents; or in contravention of the Working Times Regulations. These are just three examples of many that could end with you in a tribunal court if they weren’t handled correctly.
For a dismissal to be deemed ‘fair’ as stated under Section 98 of the Employment Rights Act 1996, it would need to be carried out for one of these five reasons:
- Capability or performance
- Conduct
- Redundancy
- Contravention of a statutory duty or restriction
- “Some other substantial reason of a kind such as to justify the dismissal of an employee holding a position which the employee held.” (This is a direct quote from the Employment Rights Act 1996.)
Let’s delve into each point a little further:
- Capability or performance
An employee can be dismissed if:
- They do not have the capabilities to do the job duties they were employed for
- They have the capabilities, but are unwilling to do the job properly
However, you should still have a process of looking further into each point to find out more about their situation, especially as poor performance could be down to health issues, or because of stress. Read more about that here.
- Conduct
When there’s clear evidence of misconduct, such as persistent lateness or unauthorised absence from work, action should be taken to try to understand why the misconduct is happening, and to give your staff member a chance to improve. For more information on this, read my blog on Managing Capability and Conduct Issues Effectively to Avoid Dismissal.
If gross misconduct is evident, this must also be handled carefully and within the legal parameters of employment law. For more on this, click here.
- Redundancy
Making people redundant is always difficult, but may be necessary if the business is changing in some way, moving location, or even closing down. To genuinely make someone redundant, you must demonstrate that the employee’s job will no longer exist. Of course, the employee has certain rights throughout the redundancy process, such as needing time off to look for a new job, and they may be entitled to redundancy pay. Read more on this subject here.
- Contravention of a statutory duty or restriction
One example of this is of employees not having the right to work in the UK anymore, or not having proof of their immigration status. Other examples can include undertaking Trade Union duties, or not providing relevant work evidence to support their employment.
- Some other substantial reason
If none of the above four reasons for dismissal apply, then the phrase “some other substantial reason of a kind such as to justify the dismissal of an employee holding a position which the employee held” becomes admissible. Examples include:
- Non-renewal of the fixed-term contract of an employee recruited as maternity leave cover
- Dismissal and re-engagement of an employee to impose new contractual terms and conditions that the employee has refused to agree
- A personality clash between employees makes working together impossible
- Where there are concerns relating to the safeguarding of children or vulnerable adults, but there are no grounds for a misconduct dismissal
I have covered this last point in more detail in other blogs that you can read here.
Even where a dismissal is potentially fair for “some other substantial reason”, it’s important that you follow a fair procedure and act reasonably in dismissing the employee, taking into account all the circumstances.
Being such a minefield, it’s important to get expert help when you need to dismiss someone to reduce the risk of being taken to court.
Before you dismiss any member of staff, for whatever reason, it is best to seek professional HR advice. You can call me on 0118 940 3032 for a confidential chat or click here to email me.

On the first day of Christmas, my HR Consultant gave to me, a Contract in a pear tree. Make sure that you have up to date contracts for all your employees.
On the third day of Christmas, my HR Consultant gave to me, three French Hens. If you have employees from Europe, keep an eye on our
On the fourth day of Christmas, my HR Consultant gave to me, four dreaded words. “You have been fired!” Before you rush to sack anyone, check to make sure you have a good reason and 

On the seventh day of Christmas, my HR Consultant gave to me, seven swans-a-swimming. If, like a swan, you’re all grace and elegance above water, while below you’re frantically paddling to keep afloat of all things HR, just get in touch to see how we can help.
On the ninth day of Christmas, my HR Consultant gave to me, nine ladies dancing. And the men can dance too!
On the tenth day of Christmas, my HR Consultant gave to me, ten lords (and ladies) leaping at the Christmas party. Make sure you lay down a few rules for proper behaviour, so that things don’t get out of hand.
On the eleventh day of Christmas, my HR Consultant gave to me, eleven pipers piping. Make a big noise when your staff do a great job.
On the twelfth day of Christmas, my HR Consultant gave to me, twelve drummers drumming. I keep drumming good HR practices into my clients’ businesses, to help them grow successful companies that are great places to work.