Dealing with Unfair Dismissal in the Workplace?
Facing a claim of unfair dismissal can be damaging for any employer. The cost of defending a tribunal case—not just financially, but in terms of time, morale, and reputation—can be significant. In many cases, the issue could have been avoided with clearer processes, better documentation, and a firm understanding of legal responsibilities.
Unfair dismissal occurs when an employee with at least two years’ continuous service is dismissed without a fair reason or without a fair procedure. Understanding how to prevent such claims is essential for business owners, managers, and HR teams alike.
What Constitutes Unfair Dismissal?
Under UK employment law, a dismissal is considered unfair if:
- There is no valid legal reason (such as conduct, capability, redundancy, breach of statutory restriction, or some other substantial reason)
- The employer fails to follow a fair process before dismissal
- The decision to dismiss is not reasonable in the circumstances
A tribunal will assess whether the employer acted fairly, based on what a reasonable employer would have done. This includes how thoroughly the situation was investigated and whether the employee was given an opportunity to respond.
Following a Fair Process to Avoid Unfair Dismissal
One of the most effective ways to protect your business from an unfair dismissal claim is to follow a structured disciplinary or capability process. This typically involves:
- Investigating the issue in a thorough and unbiased way
- Holding a formal disciplinary meeting
- Providing the employee with an opportunity to present their case
- Allowing the employee to be accompanied at hearings
- Providing a written outcome and right of appeal
Using your internal policies consistently and keeping records at every stage will demonstrate fairness and transparency.
The Importance of Proper Documentation
Accurate and consistent documentation can be the deciding factor in defending against an unfair dismissal claim. Without it, it is one person’s word against another’s.
You should keep:
- Notes from investigatory meetings and disciplinary hearings
- Evidence gathered (emails, witness statements, etc.)
- Performance reviews and capability assessments
- Copies of written warnings or final warnings
- Records of communications with the employee
Having this information available, organised, and dated supports your case should the matter go to tribunal.
Handling Employee Data in Dismissal Situations
During dismissal processes, employers often handle sensitive employee data. Although the focus is on avoiding unfair dismissal, it is equally important to manage data securely and in line with data protection laws.
To remain compliant:
- Only access or process information relevant to the issue
- Keep data confidential and store it securely
- Avoid sharing information with others who are not involved in the decision-making process
- Respond appropriately to any subject access requests made by the employee
Data mishandling during dismissal procedures may weaken your position, especially if the employee raises concerns about the integrity of the process.
Dealing with Subject Access Requests
When employees suspect they have been treated unfairly, they may submit a subject access request (SAR) to see what data your organisation holds about them. While this is not exclusive to cases of unfair dismissal, it is often a sign a claim is being considered.
Be prepared to:
- Locate and provide copies of relevant emails, records, and notes
- Redact third-party information where required
- Deliver the requested data within one calendar month
- Maintain a record of what was provided and when
A complete and well-managed SAR response can show that your business has nothing to hide and has acted reasonably throughout.
Training Managers to Prevent Unfair Dismissal
Most unfair dismissal claims originate from poor handling of disciplinary matters at management level. Investing in training ensures that managers know how to identify issues early, communicate effectively, and follow the correct procedure.
Managers should be trained on:
- Recognising misconduct versus poor performance
- Carrying out informal and formal disciplinary steps
- Applying your business’s HR policies consistently
- Understanding when legal advice should be sought
- Maintaining appropriate records and confidentiality
Effective training supports a consistent approach across the business, which is essential when defending against a claim.
Investigations and Fairness in Dismissal
Investigations are the starting point for any fair dismissal process. If they are rushed, incomplete, or biased, the dismissal may be deemed unfair—even if the misconduct or issue was real.
A fair investigation should:
- Be led by someone impartial
- Involve speaking to all relevant parties
- Be documented clearly and factually
- Avoid assumptions or speculative conclusions
- Be followed by a separate disciplinary process if warranted
Employers must ensure that conclusions are based on evidence, not opinion, and that the employee has a chance to challenge the findings.
Other Articles That May Interest You:
Understanding Business Contracts: Why They Are Essential for Employers
UK Employment Law: Transformations in the UK Employment Tribunal System
Understanding Discrimination Claims: A Guide for Employers
Post-Dismissal Best Practice to Avoid Future Claims
After an employee has been dismissed, your responsibilities continue. Unfair dismissal claims can still arise months later, particularly if the dismissal was not handled correctly or the employee was unaware of their rights at the time.
Post-dismissal best practices include:
- Issuing a clear, written explanation for the dismissal
- Informing the employee of their right to appeal
- Retaining documentation securely for at least six years
- Offering support with exit processes such as references or final pay
Careful post-dismissal conduct demonstrates professionalism and may reduce the likelihood of litigation.
Legal Advice for Employers Facing Unfair Dismissal Risks
Protecting your business from unfair dismissal claims starts with robust policies, confident managers, and lawful procedures. However, no two cases are the same, and legal advice can help you avoid mistakes and reduce risk.
At Herries Smith Solicitors, we help employers:
- Review and update contracts and disciplinary policies
- Conduct lawful investigations
- Manage dismissals in line with current employment law
- Handle tribunal claims effectively and confidently
If you are unsure whether your process is compliant, or you are facing an active claim, it is important to act quickly. Our employment law team offers straightforward guidance to help you make fair and defensible decisions.
Contact Herries Smith Solicitors today to protect your business from unfair dismissal claims and ensure your procedures are fair, compliant, and legally sound.