Defending the Right to Claim Unfair Dismissal

The latest attempt to appease businesses is a proposal that the current law, which gives employees who have been unfairly dismissed the right to claim compensation of up to almost £70,000, should be scrapped.  Instead, it is proposed that employers who wish to get rid of underperforming or lazy workers should simply be able to do so by making a small one off payment equivalent to a redundancy payment.  However, without the protection of the employment tribunals to bring unfair dismissal claims, employers will simply be able to dismiss whoever they want, whenever they want, for a relatively small amount of money and without having to follow any sort of fair process.  Arguably, that would also apply in redundancy situations as there would be no longer any such thing as an unfair selection for redundancy and it may well be that consultations and fair selection criteria go out of the window – although employees will still have the protection from discrimination afforded by the Equality Act 2010.  

The idea has been mooted as a way to appease business owners who spend on average £8500 each time they have to defend an employment tribunal claim for unfair dismissal.  However, what the Government appears to be ignoring is the fact that the majority of the claims which are brought before the tribunals are not spurious and without merit but are brought because the employer has failed to properly manage the employee by way of regular performance appraisals and warnings.   Whilst the employee may, indeed, not be performing to the required standard, he or she frequently has no idea of that fact until dismissal as managers are notoriously bad at managing.

As an employment lawyer who acts for both employers and employees, I see the situation very clearly from both sides.   I hear from disgruntled employers and shell shocked employees all the time and both sides believe wholeheartedly that they are right.  However, I can count on the fingers of one hand the number of employees who I have genuinely felt have been “trying it on”.   Similarly, I have very rarely spoken to an employer who wishes to dismiss who doesn’t have real cause for concern about the employee in question. 

I often get calls from employers who want to dismiss an employee and want to know how best to go about it without performance management which takes time and is often fruitless.   I advise them to try and negotiate an exit on mutually agreed terms.  Such a negotiated exit strategy has never, in my experience, failed and therefore there is already a route for employers to dismiss “unfairly” if they want to, and that is by way of a compromise agreement.  In return for an amount of compensation which is agreed with the employee, the employee agrees to leave and to waive his or her rights to pursue any claims against the employer.  Therefore, in my view, there is absolutely no need to change the law.  Employers who want to avoid any risk of litigation already have this option.   It is not, however, for the Government to determine what  a fair amount of compensation is in such circumstances.  The amount will clearly differ depending upon the particular circumstances and, in particular, on the salary level of the employee concerned.

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About Belinda Lester
I am the managing director and founder of Lionshead Law a specialist employment law and HR consultancy company.

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