Unfair dismissal: four reminders from 2023 case law

Last year the Employment Appeal Tribunal served up some useful reminders about the essential ingredients of a fair dismissal. These can differ in matters of detail depending on the reason for dismissal, but all reflect the overriding requirement of reasonableness which applies across the board.

As we will see, employers can trip up in a number of different places, but departures from the expected process are not always punished with a finding of unfair dismissal if they can still demonstrate that dismissal process as a whole was reasonable.

Communicate expected standards of conduct clearly

A decision involving an Ofsted inspector illustrates the importance of being clear with staff about what is expected of them where there is room for any doubt.

In this decision the inspector was dismissed for touching a child on the head and shoulder. The employers treated this as an example of serious misconduct, but were not able to demonstrate that they had communicated a “no touch” policy for staff doing school inspections. This was the key reason why the employment tribunal’s decision that the dismissal had been fair was overturned on appeal. The employers are currently seeking permission to appeal to the Court of Appeal

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Always (or almost always) hold a disciplinary hearing

A Bank employee’s claim for unfair dismissal was dismissed, even though there had not been a disciplinary hearing. The employers were saved by a particularly through investigation process which allowed the employee to state her case and put forward mitigating factors.

Despite the outcome, which was confirmed on appeal, this case is best regarded an example of an exception that proves the rule. Employers should think very carefully about dispensing with a disciplinary hearing, even if they believe that the case for leaving out this step is very strong.

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Don’t depart from your agreed procedures

More recently, the EAT considered another case where the employer adopted an unusual approach, this time in the context of a capability dismissal. Its written procedure provided for a series of review meetings before reaching a decision to dismiss.

The manager responsible approached matters in a different way, setting a provisional date for dismissal which was then repeatedly postponed to give the employee more time to recover and resume work. The employment tribunal concluded that the employer’s overall approach, although unconventional, had not been unfair, and the EAT agreed. With hindsight though, the employer may have been able to avoid litigation if it had played it by the book.

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Be clear how you communicate your decision

Particularly in health-related dismissals, an employer may wish to offer a settlement package to mitigate the impact of a decision to dismiss, where the employee is not at fault. However, difficulties can arise if the dismissal and the settlement tracks are not kept separate.

In one 2023 decision confusion was caused when what was intended to be a dismissal letter included without prejudice proposals to agree a termination package. In the end, the tribunal gave the employer the benefit of the doubt and decided that the letter had been effective in terminating the employment at the time it was received. That meant that the employee had been out of time for bringing an unfair dismissal claim, a decision which the EAT endorsed.

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Our content explained

Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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