3.1 Explain the principles of legislation relating to unfair dismissal in respect of capability and misconduct issues.

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Employment Relationship Management (5HR01) 

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LO3 - Understand how to manage performance, disciplinary and grievance matters lawfully
3.1 Explain the principles of legislation relating to unfair dismissal in respect of capability and misconduct issues.
3.2 Analyse key causes of employee grievances.
3.3 Explain the skills required for effective grievance and discipline handling procedures.
3.4 Advise on the importance of handling grievances effectively.


Mary has been employed as a secretary for 6 years. During this time, she has been transferred between several departments and does secretarial work for a number of managers. She has been in your department for 8 months. On two occasions you have thought that you have smelled alcohol on her breath and one manager has also mentioned this to you but made a joke of it. You have just received a call from another manager telling you that Mary is drunk……
Explain what steps need to be taken and why, if the organisation is to minimise the chances of having to defend the case in an Employment Tribunal

IF not managed effectively, employees could make a claim for:
• Wrongful Dismissal
• Constructive Dismissal
• Unfair Dismissal *
-Employee need to provide justification  and supporting evidence using the ET1 application form
-The employer (respondent) must respond to the claim within 28 days using the ET3 form
-What is the difference between the above-mentioned types of dismissal? Discuss.

• Where an employer breaches their contractual obligations of employment
• NO length of service required for a claim
• Most commonly occurs where an employer dismisses and employee with insufficient notice under their agreed terms and conditions
• Damages awarded usually equate to the value of the employee`s pay and benefits during the period of notice that the employee would have been given, had the contract been terminated lawfully.
• Employer breaches the contract of employment
• Employee resigns in response to the breach
• Employee must resign in a timely manner and the resignation must be because of the breach

Situations that could lead an employee to feeling they have been constructively dismissed could include:

• Being suddenly demoted for no reason.
• Being bullied or discriminated against by either the employer or colleagues.
• Changing hours or place of work without agreement and without the contractual right to do so.
• Raising a grievance which the employer refuses to look into.
• Being given an excessive workload.
Consistently being paid incorrectly.

Dismissal is automatically unfair if it is connected with an employee exercising specific rights
• Family Reasons relating to Pregnancy, maternity or paternity leave, requesting flexible working, leave for family emergencies, parent craft classes, appointments!
• Union membership/seeking union recognition
• Whistle blowing
• Raising health and safety issues
• Asserting a legal right such as Jury service or participating in lawful, organised official industrial action

But also if;
• An employer is not following policy/process
• Dismissal action not justified
• Failure to follow a due process

Potentially Fair Reasons for Dismissal
❖ Capability
❖ Misconduct
❖ Breach of statutory regulations
❖ Redundancy
❖ Some other substantial reason.
Under all circumstances employers must be see to be reasonable in disciplinary judgement

Dismissal process must consider
• Employer must show openness, fairness and transparency
• Employees have a right to a fair hearing
• The right not to be unfairly dismissed
• The right to appeal
• The right to raise a grievance

• Take into account length of service/job role (seniority)
• Make sure the employee been informed of their rights (e.g. representation)
• Ensure the employee’s past record been taken into account
• Consider mitigating circumstances
• Provide opportunity to state case/and question evidence/witnesses
• Explore whether poor performance may be related to a capability/lack of training issue
• Ensure overall process of a fair hearing conducted (line manager involvement, full investigation, structured hearing of the case, and provision of an appeal)

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