Legal advice for employers to avoid unfair dismissals and defend against claims
We have successfully represented companies in a wide range of industries defending Unfair Dismissal claims and/or avoiding the claims in the first place by ensuring dismissals are carried out fairly and/or mutually agreed within a Settlement Agreement.
Unfair Dismissal is a statutory claim that can only be brought by an employee (as opposed to a genuinely self-employed person, contractor or third party). Since 6 April 2012 an employee must have two years’ service with the employer in order to bring an ordinary Unfair Dismissal claim (although see the Automatically Unfair Dismissal exception below). If the employee commenced employment prior to 6 April 2012 they only need one year’s service to be eligible to bring a claim.
An employer can dismiss an employee fairly by having a fair reason for dismissal and by the employer following a fair procedure. Where relevant, the ACAS Code of Practice should be heeded (as a failure to follow the Code can increase an employee’s Unfair Dismissal award). The size and resources of an employer will also be taken in to account when considering the fairness of the dismissal.
Our unfair dismissal lawyers guide our employer clients through the process of dismissal from contemplation to termination (where required) whether it is for redundancy, capability, conduct, illegality or SOSR/some other substantial reason. It is not uncommon for employers to select the wrong “potentially fair reason” for dismissal which can cause an unnecessary potential liability for the business and/or time wasted on the wrong pathway. As we are fully up-to-date on recent unfair dismissal case law we can take you through all the relevant business and financial considerations for your company and develop a practical, commercial strategy for how to progress the issue.
Employees ordinarily have three months less one day from the effective date of termination to bring a claim (although in some circumstances this is extended as a result of compulsory early conciliation via ACAS).
Dismissals that are found to be for certain specified reasons will be ‘Automatically Unfair’. Some of these have no qualifying period of service attached to them and others have a shorter qualifying period attached (e.g. one year’s service). Examples of these are where a dismissal is: connected with a TUPE (Transfer of Undertakings Protection of Employment) transfer; for making a ‘protected disclosure’/whistleblowing; for a health and safety reason; connected to the Working Time Regulations; for taking maternity leave; for making a flexible working request or a redundancy on nay of these grounds (amongst other reasons). Our solicitors will discuss these issues with you.
Kervin & Barnes’ lawyers have successfully defended a great many unfair dismissal claims at Employment Tribunal and Employment Appeal Tribunal levels. We have had cases where we persuaded vexatious litigant claimants to drop their claim prior to any preliminary hearing or case management order taking place and without any payment or other benefit being provided. We have defended claims that have gone on for over a year as a result of determined but misguided claimants who have ultimately lost at Tribunal and been criticised by an employment judge.
As well as paying Employment Tribunal fees, in some circumstances it is possible to require employees to pay a deposit to continue their claim and/or to recover certain legal fees from that former employee.
Specialist Unfair Dismissal solicitors
Our lawyers have many years’ experience in dealing with fair/unfair dismissal matters for clients. We advise clients in the financial services, FMCG, recruitment, transportation, cosmetics, online retail, advertising, construction, travel, sports and polling sectors as well as multi-national conglomerates – those based, or with offices, in London and all around Great Britain.
We will talk you through the law and how it applies to your factual situation. Where litigation is contemplated or on foot: we will discuss your prospects of success and the evidence required to demonstrate your defence. Where you come to us prior to dismissal: we will talk you through your options giving reasoned, practical and commercial advice based on our experience as advisers and litigators.
As a result of their success, our team and our unfair dismissal solicitors individually have received acclaim in the leading legal directories: Legal500 and Chambers & Partners.
Common Unfair Dismissal issues
Some of the most common issues we come across are:
- Redundancy due to reduced requirements for work of a particular kind or business/location closures.
- Long-term sickness absence culminating in capability dismissals.
- Short-term repeated sickness absence potentially leading to conduct-related dismissals.
- Managing out poor performers.
- Dismissals following a breakdown in relations between the business and/or its executives and an employee.
- Serious and gross misconduct dismissals.
- Dismissal of employees who are in breach of contract.
- Defending claims spanning unfair dismissal and TUPE, whistleblowing, breach of contract, consultation rights and/or discrimination claims.
- Defending automatically unfair dismissal claims.
Recent Unfair Dismissal matters include
- Defending and forcing the withdrawal of an unfair dismissal and race discrimination claim brought by a vexatious litigant (shortly after filing the defence).
- Successfully defending automatically unfair dismissal claims on the grounds of asserting statutory rights.
- Successfully defending unfair dismissal and sex discrimination claims.
- Successfully defending unfair dismissal claims brought by contractors who unsuccessfully asserted employee status.
- Defending and forcing the withdrawal of TUPE-related unfair dismissal claims.
- Settling claims at an early stage for clients’ commercial preferences.
- Successfully avoiding any claims (unfair dismissal or otherwise) after guiding clients through large-scale redundancies and restructurings and TUPE transfers.
Talk to a specialist employment lawyer
If you would like to speak to one of our solicitors on a confidential basis about fairly dismissing an employee or current allegations or claims please call our London-based solicitors on 0203 178 5360 or email firstname.lastname@example.org. We act for senior executives as well as companies in a range of industries (financial services, FMCG, recruitment, transportation, cosmetics, online retail, advertising, construction, travel, sports and polling sectors as well as multi-national conglomerates – those based, or with offices, in London and all around Great Britain). We find that this insight is extremely useful for strategising cases.