Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
What exactly did the employee do in order to be terminated?
OK, thank you for your response. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.
Many thanks for your patience. If an employee has over 2 years’ continuous service then they are protected against unfair dismissal. This means that to fairly and legally dismiss them, the employer has to show there was a potentially fair reason for dismissal and also follow a fair dismissal procedure. Failure to satisfy either could make the dismissal unfair, even if in reality there was a justifiable reason for dismissing them. So the dismissal could be for a perfectly valid reason but be procedurally unfair as no fair procedure was followed and overall it would make the dismissal unfair.
So I am afraid that it is indeed possible for her to claim unfair dismissal if you did not follow the correct dismissal procedure. However, it is not all bad news. There is a principle known as Polkey deduction, which could allow you to reduce any compensation payable by as much as 100%, depending on the likely outcome of a disciplinary had you followed the correct procedure. Only a tribunal can decide that though so it is up to you whether you wish to fight this or try to pay her off just to put an end to any potential claim.
This is your basic legal position. I have more detailed advice for you in terms of the law on Polkey deductions and how it can apply here, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Thank you. The lack of contracts does not change your legal position in terms of dismissal, but it can allow the employee to make an additional claim for your failure to issue them with a contract, which you must do within 2 months of the start of someone’s employment. If they can claim for unfair dismissal, they can also add a claim for this which can add an additional 2 to 4 weeks’ pay for this failure.
As to Polkey, this is an argument you can raise should this get to trial, where you are saying that whilst the dismissal was procedurally unfair because you did not follow the required procedure, had you followed it as required, the outcome would have been the same. In other words, the failure to follow the correct procedure did not affect the overall outcome and based on the circumstances and facts, the same decision to dismiss would have been arrived at. In that case the tribunal could reduce part of the compensation by whatever percentage they believe is appropriate to account for that.
You can do it yourself if you are up for it
Many people represent themselves. The tribunal knows you are not legally qualified so they would not expect you to use any legal jargon - they will help you along. She cannot be forced to return to work if you offer her job back but you can raise this later by pointing out she had an opportunity to minimise her losses but turned it down so again it should reduce her compensation
Nothing specific unfortunately, it depends on the reasons for absence, business needs, what others are taking, etc.
No problem, all the best
Hi, I am sorry as this is a new matter (i.e. not related to the original question on the dismissal fairness) I have to ask you to post it as a new query for my attention please and then I can deal with it. Many thanks
Thank you very much