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What is unfair dismissal?

Stephen Britton

25 July 2017

Expert employment solicitor Stephen Britton explains and answers some questions on unfair dismissal.

What is unfair dismissal?

Unfair dismissal is when the employer dismisses the employee and doesn’t:

  • have a good reason for dismissing
  • follow the company’s formal disciplinary or dismissal process or a fair process

There are situations that are more likely to make the dismissal unfair, depending on the circumstance, these include:

  • asking for flexible working
  • refusing to give up your working time rights – for example rest breaks
  • joining a trade union
  • applying for maternity, paternity and adoption leave
  • Whistle blowing

It is important to understand that not every employee qualifies for unfair dismissal and needs to have continuous employment for two years.

For there to be a fair dismissal the employer must show that the dismissal that the reason (or if more than one, then the principal reason), falls into one of the categories set out in the Employment Rights Act 1996.

  • Reasons relating to the employees conduct
  • Reasons relating to the employees lack capability or qualification;
  • By reason of redundancy
  • By reason of a statutory duty or restriction prohibiting the employment being continued
  • Some other substantial reason

What constitutes a dismissal?

The purposes of unfair dismissal- the definition of dismissal is contained within the Employment Rights Act. There are three categories, the first type of dismissal known as express dismissal is where the contract for employment is terminated by the employer. The second category of dismissal, is where a limited or fixed term contract expires and the third category dismissal is one is colloquially known as a constructive dismissal but the statute terminology describes this form of dismissal as being circumstances in which an employee terminates his or her contract to employment with or without notice in circumstances where they're entitled to terminate their contract employment without notice by reason of the conduct of their employer.

What constitutes an unfair dismissal?

It's easy to answer that question by reference to what constitutes a fair dismissal because anything which is not a fair dismissal will likely be called an unfair dismissal. Now a fair dismissal is identified by a tribunal following a two-stage process, first stage of the process is for the employer to show the reason for the dismissal. They have to show a reason which is described within the legislation as a potentially fair reason, there’s five potentially fair reasons if the employer is able to show one of those potentially fair reasons.
The tribunal will then go on to determine whether the potentially fair reason actually was fair in all circumstances of the case. Now that depends on assessment of whether the employer acted reasonably in all the circumstances in treating the reason upon which they rely as a sufficient reason to dismiss.

What are the fair reasons for dismissal?

The statutory potentially fair reasons are capability that includes capability in the sense of poor performance but also ill health. The second one is conduct a third reason that is potentially fair is redundancy, the fourth one is known illegality but basically that would arise if it is no longer lawful because of a statute of restriction to continuing to employ an individual such as a driver's who has lost a drivers licence and finally is a catch all category which is known as ‘some other substantial reason’

What is meant by ‘some other substantial reason’?

Because unfair dismissal is a statutory complaint that has been designed and basically lives through virtue of the statute, the legislators have identified five reasons which are described as potentially fair reasons, the fifth one and some of the substantial reason is the catch-all reason but that's in there because it's not possible for the legislators to identify every reason which might conceivably be potentially fair in particular circumstances of a case. The full expression is some other substantial reason of a kind such as justifying the dismissal of the employee performing the type of work or holding the role in question. So in general terms that reason can be whatever reason an employer may consider in their particular case is a fair reason in their particular circumstances but most commonly people or I should say employers rely upon some other substantial reason if the reason is for a business reorganization or perhaps is going to break down in the working relationship.