Tribunal Winning Strategies for Defending Against Unfair Dismissal Claims

Tribunal Winning Strategies for Defending Against Unfair Dismissal Claims 

Unfair dismissal claims are among the most common types of cases brought before employment tribunals. Defending these claims effectively requires careful strategy, meticulous preparation, and a strong understanding of the legal complexities involved. This article outlines key strategies for UK employers to maximise their chances of success in unfair dismissal cases. 

1. Early Intervention and Legal Advice 

• Take Immediate Action: Seek expert advice from an employment law solicitor as soon as you become aware of a potential unfair dismissal claim. Early intervention is crucial for understanding the legal arguments and building your defence. 
• Investigate Thoroughly: Conduct a prompt and thorough internal investigation of the circumstances leading to the dismissal. Gather all relevant evidence and documentation, and secure witness statements where appropriate. 

2. Understand the Legal Test for Unfair Dismissal 

To succeed, the claimant must prove that they were dismissed. 

The employer must then establish the reason for the dismissal and that the employer had one of the five potentially fair reasons for dismissal: Conduct, Capability, Redundancy, Statutory illegality, or "Some Other Substantial Reason" (SOSR). 

The tribunal will then decide whether the dismissal was fair in all the circumstances including whether it was procedurally unfair, and/or whether the employer’s decision to dismiss fell within the "band of reasonable responses" that a reasonable employer could take in the circumstances. 

3. Strategies for Building a Strong Defence 

• Procedural Fairness: Demonstrate that you followed fair procedures, aligning with the ACAS Code of Practice on Disciplinary and Grievance Procedures. Document each step of the disciplinary process, including warnings, meetings, and the employee's right to be accompanied. 
• Substantive Fairness: Show that the reason for dismissal was genuine, proportionate, and within the "band of reasonable responses" an employer could take in the circumstances. 
• Mitigating Factors: Highlight steps taken to assist the employee in improving performance (if capability-related) or attempts to find alternative employment within your organisation (if redundancy-related). 
• Consistency: Demonstrate that you have applied rules and procedures consistently across your workforce, avoiding any appearance of discrimination or unfair treatment. 

4. ACAS Early Conciliation 

• Engage Meaningfully: Use Early Conciliation as an opportunity to explore potential settlement options, but also to understand the strength of the claimant's case and potentially identify weaknesses that can be exploited at the tribunal. 

5. Preparing for the Tribunal Hearing 

• Compelling Witness Evidence: Choose witnesses who can provide clear, factual accounts to support your defence. Prepare them thoroughly, including potential cross-examination questions. 
• Strong Documentation: Organise all relevant documentation in a chronological and easily accessible manner. This includes employment contracts, performance records, disciplinary notes, and company policies. 
• Effective Representation: An experienced employment law solicitor can expertly present your case, navigate procedural complexities, and challenge the claimant's evidence. 

Key Takeaways 

• Preparation is Essential: A well-prepared, proactive defence is far more likely to be successful than a reactive one. 
• Documentation and Consistency Matter: Clear records demonstrating fair processes and consistent decision-making are often persuasive in tribunal cases. 
• Seek Expert Advice: Don't underestimate the value of specialist legal counsel in navigating the complexities of an unfair dismissal claim. 

Additional Considerations 

• Settlement Options: Explore the possibility of settlement throughout the process, carefully weighing the potential risks and costs against a satisfactory resolution. 
• Cost Implications: Be aware of the potential legal costs and the possibility of the tribunal awarding costs against you if your defence is unsuccessful. 

Article by

Marianne Wright

mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.

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This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 11.08.24