What can employers do to avoid unfair dismissal claims?

Terminating an employee can be a complex matter that carries a risk of an unfair dismissal claim against the employer, no matter how careful the company may be. When letting an employee go, it is important that it is done legally and in a fair, just and reasonable manner.
 
Under Polish law, employment contracts can be terminated by the employer either in a regular mode (i.e. with the notice period) or for disciplinary reasons (i.e. without the notice period). What is specific for Polish law, is that there has to a concrete and objective reason for terminating the contract by the employer otherwise the employee can be reinstated by the court in the case of a court dispute.
 
In the case of termination for disciplinary reasons, there has to be gross violation of basic duties by the employee, for instance drinking alcohol in the workplace or not coming to work. The termination letter in case of a disciplinary dismissal should indicate circumstances of the gross violation of basic duties and decision of the employer to terminate the employment immediately.
 
In the case of termination in a regular mode (i.e. with the notice period), there has to be sufficient grounds for dismissal otherwise the employee can be reinstated by the court in the case of a court dispute. What are the sufficient grounds?
 
Reasons for terminating employment contract
 
The reasons for terminating the employment agreement with notice fall into two broad categories:
 

• termination for cause (misconduct or poor performance) 

• termination as a result of restructuring (redundancy) 

To minimise the risk of an unfair dismissal claim, employers must demonstrate that their reasons for the dismissal fall within the scope of ‘fair’ reasons specified by law. These include:
 

1. Misconduct: Dismissal due to misconduct may be considered fair if the employee has engaged in unacceptable behaviour that undermines their ability to perform their role or jeopardises the company’s reputation. However, employers must ensure they have strong, documented evidence to support the dismissal on misconduct grounds and must follow the company’s disciplinary procedures.

2. Performance: Employers may dismiss an employee for poor performance, but only after providing them with adequate support and a reasonable opportunity to improve. It is crucial for the employers to keep records of performance appraisals and any steps taken to help the employee before deciding on dismissal. While drafting the termination letter, the employers should indicate examples of poor performance and be able to provide sufficient evidence.

3. Redundancy: If an employee’s position is no longer needed due to business restructuring, reduced workload, or company closure, a dismissal on the grounds of redundancy is considered fair, provided the employer follows appropriate redundancy procedures. The best option is to have resolution of the board which announces the adopted changes to the company and the redundancy process.

 
Protection from dismissals
 
It should be remembered that under Polish labour code all employees are protected against termination during leaves and employee’s justified absence. In addition to that, certain categories of employees are protected against termination if they meet certain criteria (e.g. pregnancy, pre-retirement age etc.). The termination letter delivered to an employee who is protected by law is contrary to the law. If the employee appeals to court, they will probably be reinstated to work. Whether it is downsizing or individual dismissal – the process should be well planned and supervised from the very beginning.
 
Conclusions
 
To avoid unfair dismissal complaints, employers should plan the dismissal process carefully. Employees who have been wrongfully or unfairly dismissed can make a claim against their employer to an employment court.
 
In demonstrating fair reasons for dismissal, employers must remember that procedural fairness is as important as the reason for dismissal. Employers should establish and consistently follow clear and transparent procedures for handling disciplinary and performance issues.