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Dismissal


first_imgDismissalOn 18 Jan 2000 in Personnel Today Previous Article Next Article Related posts:No related photos. Comments are closed. With the rise of the compensatory limit from £12,000 to £50,000 fordismissals on or after 25 October 1999, potential liability for unfairdismissal has become a serious business issue for many employers. So it isvital that all employers are familiar with the concept of what constitutes afair dismissal, and how to go about it.To defend a claim of unfair dismissal, an employer will need to show twothings – that it had a fair reason for the dismissal, and that it adopted afair procedure and acted reasonably in treating the fair reason as a sufficientreason for dismissing the employee. There is, of course, a huge amount of case law on what these statutoryprovisions mean in particular circumstances. However, it is worthwhile bearingin mind the above two-stage defence is effectively required to resist eachunfair dismissal claim and it is for the employer to demonstrate on the balanceof probabilities that it has met these requirements.Fair reasonsThe fair reasons adopted in the statute are conduct, capability, redundancy,contravening a statutory duty and “some other substantial reason of a kindsuch as to justify the dismissal of an employee holding the position which theemployee held”. This fifth, residual category – SOSR – will increasinglybecome a battleground for more unfair dismissal cases as unfair dismissal litigationincreases due to the size of the potential awards.SOSRAll kinds of reasons have been used to justify a dismissal for SOSR. Themost typical scenarios include business restructurings not involvingredundancies, third party pressure to dismiss an employee and unacceptablebehaviour reflecting upon the employer. In each case, there is a duty on theemployer to show that dismissal was effectively the last resort, havingconsulted thoroughly with all the relevant individuals, and having conducted areasonable investigation into the situation and all alternative solutions. One obvious alternative solution will usually be redeployment within theorganisation – if it is possible, the dismissal may not be fair. Perhaps morethan any other four fair reasons, the SOSR category blurs the distinctionbetween the two stages of the defence above. Some tribunals have distinctlysignalled that if sufficient thought has not been given to alternativesolutions for the difficulty and/or an insufficient investigation and consultationprocess has been undertaken, this might impact on the very substance of thereason upon which the employer wishes to rely.TacticsAlways be aware that if you are faced with a situation requiring a dismissalfor practical or commercial reasons, it might be possible (sometimes as a lastresort!) to carry out the dismissal fairly using the SOSR process. At the veryleast adopting this stance in the absence of any other can assist the employerin negotiations over settlement, giving the employer at least some respectableargument that the dismissal was not actually unfair, and at best it can avoidliability altogether for the employer provided that all the elements forrelying on SOSR are made out.By Russell Brimelow, Head of the employment group Boodle Hadfieldlast_img read more