7 tips to protect your business and employees from unfair dismissal

At LGBT Lawyers, we're a local legal matchmaking service. We work to put the LGBT community in touch with legal professionals from similar backgrounds to resolve legal issues. Personally, I've seen a considerable increase in enquiries from both businesses and employees throughout the pandemic about redundancies and dismissals.

Over the course of the last 12 months, just over 100,000 employment tribunal applications were made nationwide. Surprisingly, this was a significant decrease compared to the previous period, but this could be attributed to the furlough scheme protecting jobs in the worst hit sectors.

Despite our focus on the LGBT community, we speak to various businesses and work with law firms across every type of law. It's fair to say that the general consensus amongst our partners is that now, more than ever, the importance of protecting employers and their employees from unfair dismissal is at an all-time high, given the world’s current climate.

For both employers and employees, this can be a challenging situation. If an employee's contract is terminated unfairly, it can cause both the employer and employee time, money, and stress.

What is unfair dismissal? 

Claims for unfair dismissal are made through the employment tribunal and usually arise out of a business' failure to:

1. Adhere to the terms and conditions set out in an employee's employment contract when dismissing the employee 
2. Follow its own internal policies
3. Follow a fair redundancy process 

Unfair dismissal claims can only be brought once an employee's employment has been terminated by a business. They can't be brought if an employee has resigned or when they have been suspended.

A common myth is that businesses can dismiss employees for any reason if they have had less than 2 years' continuous service. This myth is (mostly!) false.

So, how can you protect yourself and your employees from unfair dismissal?

1. Get your contracts professionally drafted

When starting out in business, or employing for a new kind of role, the temptation is always there to draft an employment contract from a template online, or by writing it yourself.

Remember that contracts exist not only to set out how someone is employed, but crucially, also what happens when things don't go the way you expect. With average legal fees of around £10,000 for businesses to defend a claim for unfair dismissal, it's worth spending a good amount having your own contract template professionally drafted. You can think of it as a cost saving in the long term.

2. Be clear on your expectations

If you have an employee who is underperforming, don't shy away from difficult because you don't want things to become awkward. This is neither fair on employees nor yourself.

Not only do you give a false sense of security to the employee, you're also not giving them a fair chance to improve.

In this situation, it's a lose-lose, and you open yourself up to legal action if you can't demonstrate that you have tried to help an employee improve. 

3. Effectively communicate internal policies

Don't treat policies as a tick-box exercise and shut them away never to see the light of day again once they're created. If you don't communicate these policies to employees, you can't expect anyone to follow them.

If you're not sure how to draft these policies, again, I would stress the importance of getting a solicitor to do this for you.

There is plenty of cheap, but effective, HR software out there these days (we use People HR), where policies can be stored and employees can access them electronically. It's even possible to store training courses online too for areas like Health and Safety, where it's important that everyone's knowledge is kept up to date. 

4. Use disciplinary and grievance procedures

Managing people properly is hard. Pulling together a development plan is hard. Having tough conversations is hard. But these things all help people to develop and grow.

You've got to ensure you have the right policies in place and that you follow them. This means that you treat everyone equally, and there’s a level playing field.

Don't simply look at procedures as 'going through the motions'. Look at them as opportunities to help your own employees and in turn, your business. If you follow the right procedures and document this, it will be far more difficult to say that a dismissal was unfair if nothing changes. 

5. Follow the right procedure if making redundancies

The rules around making redundancies can be confusing and you've got to ensure you not only give enough notice, but also calculate redundancy pay correctly.

If you're not confident in doing this yourself, seek out an HR professional or a solicitor who will be able to take on the stress of the process on your behalf. Again, this might cost more in the short term, but save you costs further down the line. 

6. Be wary of indirect discrimination

As an LGBT-focused organisation, we're at pains to point out to employers' issues of indirect discrimination that can happen at a subconscious level. For example, if your sickness policies indirectly penalise people with HIV by not allowing time off for hospital appointments, you may be indirectly discriminating against people with a disability.

And, if this can be proved, you'll have a much larger problem on your hands.

Take some time out annually to review your policies, and who they are affecting, to ensure everyone is either treated fairly, or that reasonable adjustments are being made where necessary. 

7. Take legal advice before making any dismissals

If at any time you are worried about an unfair dismissal claim being brought against you, seek legal advice. There are likely steps that you can take to reduce or eliminate the risk of this happening that you may not have otherwise known about.

If you have any questions or concerns about the tips mentioned, or you'd like to know more about making your workplace more LGBT-inclusive, just give us a ring on 020 3795 9020, or email us at info@lgbtlawyers.co.uk and we would be more than happy to help.

If you want to contribute to the Chamber blog, contact us on hannah@brightonchamber.co.uk