Unfair Dismissal

In its simplest form, a dismissal is when an employer terminates the employment contract of their employee with or without notice. Not all dismissals are unfair and this will depend on the circumstances and facts of the particular case and against the principles of case law and the Employment Rights Act 1996.^[1]

In order to claim unfair dismissal you will have to show:

• You are an employee with the correct qualifying service
• The employer does not have a valid reason to justify the dismissal
• The employer acted unreasonably in the circumstances

There are other considerations that employment tribunal look at, such as is the employer:

• consistent with their treatment
• have  investigated the situation fully before dismissing
• not acted discriminatory in their treatment

Have you actually been dismissed?

In order to challenge an employer at an employment tribunal, the employee must show that they have been dismissed, for example:

•    The contract of employment^[2] has ended, with or without notice

•    The refusal to renew a fixed-term contract

•    Being made redundant,^[3] including voluntary redundancy

•    Dismissed you for going on strike

•    Stopped from coming back to work following maternity leave

Evidence will be needed to demonstrate that a dismissal has taken place, such as an official termination letter, or emails and/or text messages from the employer.

There is no dismissed if the employee:

•    is suspended from work

•    Choose to resign unless;

i)    there was pressure to hand in your notice

ii)    the employer did something that was a serious breach of the contract of employment and resigned as a result of that breach

Either of these could amount to a type of dismissal called ‘constructive dismissal’.

What is an unfair dismissal^[4] ?

Employees who have the qualifying period of service have the right not to be subject to an unfair dismissal and employment tribunals will consider whether the employer had legitimate grounds to dismiss the employee from an established list of reasonable grounds, including statutory requirements, redundancies, crime and medical grounds.

The important thing to note is that although these – and others – may be seen as reasonable reasons for dismissal, the central tenets of the case, and the employer’s decisions, attitude and actions during the dismissal process will be key to establishing whether the dismissal was unfair.

What is an automatic unfair dismissal?

Dismissals can also be classed as 'automatically unfair' if the reason for dismissal is connected with the employee exercising specific rights relating to:

•    pregnancy: including all reasons relating to maternity

•    family reasons: including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants

•    representation: including acting as an employee representative

•    trade union membership grounds and union recognition

•    part-time and fixed-term employees

•    pay and working hours: including the Working Time Regulations, annual leave, unlawful deductions and the National Minimum Wage.

•    Raising legitimate concerns – whistleblowing

•    Discriminatory reasons for the protected characteristics

What is a fair dismissal?

A dismissal can normally be fair if the employer shows that it was for one of the following reasons as set out in the Employment Rights Act 1996:

There are 5 legal reasons for dismissal that are ‘potentially fair’. This means it might be fair if you were dismissed because:

1 Capability or qualification - for example, because of the employee's poor performance or illness the employee has been off sick a lot.

 Before taking any action, the employer should:

•    follow some kind of performance procedures - eg warn you that the work isn’t satisfactory and allow time to improve

•    give a chance to improve - eg by providing training

In regard to Illness before taking action, the employer should:

•    look for ways to support the employee - eg considering whether the job itself is making them sick and needs changing

•    give you reasonable time to recover from the illness

The illness may be classed as a disability and the employer has a legal duty to provide reasonable adjustment in the workplace.

2 Conduct of the employee – for example misconduct such as dishonesty, poor attendance, failure to follow instructions, and which can amount to gross misconduct

In essence it is about not being able to do the job properly, however, before taking any action, the employer should:

•    follow disciplinary procedures

3 Redundancy - employers must follow a fair process and procedure and it must be a genuine redundancy

4 A statutory restriction – this is when continuing to employ the person would break the law - eg if a driver in a lorry firm and loses their driving licence due to speeding

5 A substantial reason - any reason that does not fall within one of the above reasons, for example:

•  unreasonable refusal to accept a company reorganisation that changes the employment terms

•  sent to prison

•  a client expresses a wish that they do not want a particular person on site again

It is not always straightforward and whether the dismissal is actually unfair will depend on all the details of the individual case, for example:

• whether the employer has treated the employee in the same way as other employees in similar situations

• whether the employer has tried to help the employee overcome any issues, for example by providing additional training

• has employer followed a fair procedure including a fair investigation

And overall whether they acted reasonably in treating that reason as sufficient for dismissal.

For some free advice on your circumstances call our Freephone advice line: 0333 772 0611.

Written reasons for dismissal

Employees have the right to request a written statement from their employer giving the reasons why they have been dismissed, provided they are an employee and have completed 2 years’ service.

The employer must supply the statement within 14 days of you asking for it.

The employer must provide a written statement if the dismissal has taken place whilst the employee is on Statutory Maternity Leave.

What is the qualifying period to claim unfair dismissal?

The employee must have worked for the employer for a minimum period before they qualify for the right to claim unfair dismissal at an employment tribunal. If the employee is classed as an employee and started in their position:

• on or after 6 April 2012 - the qualifying period is normally 2 years

There is no qualifying period if the dismissed from June 2013 is because of political opinions or affiliation or any of the other automatically unfair dismissal categories.

In unfair dismissal claims, they must be lodged with an employment tribunal within 3 months of being dismissed and this is now taking part in the ACAS early conciliation process.^[5]

What to do if you are unfairly dismissed?

If you find yourself in the unfortunate situation and feel that you have been unfairly dismissed by your employer, you should always appeal under your employer's dismissal or disciplinary procedures. If this does not work, then you may be able to make a claim at an employment tribunal.