Tribunals - Achieving a fair hearing

With a tribunal, you need to take into account whether it is a fair dismissal or not, or in some cases, consider if you have taken fair disciplinary action.

Dismissals are complicated and procedures have grown over the years by a mixture of statute, contract law and best practice. Statute is legislation that has been passed by parliament and governs issues such as the statutory dispute resolution procedure. Contract law governs the contract between both parties, for example where you have given terms and conditions to an employee that exceed statutory requirements. Best practice, besides covering an opinion on what a 'reasonable employer would do', includes all of the Advisory, Conciliation and Arbitration Service codes. The codes are not law themselves, however they will be something that a tribunal will take into consideration during a hearing. An employer will find difficulty in answering to the court if it has not complied with these codes.

The starting point is natural justice, under which "an individual should know what they are accused of, be given the opportunity to defend themselves and then be treated fairly by the tribunal dealing with them." This has governed fairness for most of the last 35 years, however the statutory disputes resolution procedure was introduced in 2004 and requires that an individual be sent a letter setting out the employer's concern in detail; the letter should be detailed so that the individual can prepare for a subsequent meeting. It would also be best to include their rights to be represented or accompanied to state their case, as well as appeal.

If the employer does not follow the statutory dispute resolutions procedure, dismissing an employee will be seen automatically as unfair. In such an event, awards will increase by a factor of between 10% and 50%. However, employers will find still that following the procedure does not protect them completely from being accused of an unfair dismissal; following the statutory dispute resolution procedure will mean simply that it is not automatically unfair.

To ensure that you have a better chance of winning at tribunal, take a look at your contracts of employment; you must have one in place that is written properly to outline all of the subjects required. If you do not then you have almost lost the tribunal at this stage. The contract should set out your disciplinary procedures - when someone does misbehave then it is essential that you follow your procedures.

At tribunal, 80% of cases are lost due to procedural faults and not because the individual did not deserve sacking. Ensure that your procedures are followed properly and make sure, in any disciplinary action, that the response is appropriate and fair. Sacking an employee on the grounds of punctuality for being late once would be totally unfair normally.

Although you cannot stop an individual making a claim to a tribunal, you can ensure that the right procedures and fairness are in place, meaning that any tribunal is more likely to be won.

- Peter Done, managing director, Peninsula.