Unfair Dismissal

Basis

An employee has the right not to be unfairly dismissed by his employer.
In order to bring a claim for unfair dismissal the following must apply: -
  • The worker must be an employee and not a contractor or self-employed person.
  • The employee must have at least 2 years’ continuous employment (except in certain prescribed circumstances, for example where the dismissal relates to pregnancy).
  • The employee must have been dismissed.
Dismissal

Dismissal may be an actual dismissal by the employer or a constructive dismissal - where the employee leaves his employment because the employer’s conduct has made the employment relationship so untenable that the employee is entitled to treat the contract as having been terminated.

Burden of proof

It is for the employee to show that there was a dismissal (actual or constructive) and then it is for the employer to argue that the dismissal was carried out for a fair reason, and that they acted reasonably in carrying out the dismissal.

Fair reasons

There are 5 statutory fair reasons for dismissal.
  • That the employee lacked capability to do the job.
  • That the employee’s (mis)conduct warranted the dismissal.
  • That the employee’s job became redundant - see Redundancy.
  • That the employment could not continue for reasons of illegality.
  • That the employee was dismissed for some other substantial reason.
Reasonableness

Reasonableness will depend on whether "the decision to dismiss the employee fell within the range of reasonable responses which a reasonable employer might have adopted". If the dismissal falls within the range, the dismissal is fair: if the dismissal falls outside the range, it is unfair.

Dismissal procedure

The procedure adopted by the employer will play a large part in whether the dismissal is fair. A dismissal for a fair reason will be rendered unfair if the employer fails strictly to adhere to the correct disciplinary and dismissal procedures (as contained in the contract or as prescribed by statute).

Remedies

  • Reinstatement to the same role.
  • Reengagement by the employer to another role.
  • Compensation – the employee’s compensation will be made up of two parts, both of which are subject to a statutory cap that is reviewed annually.
    • Basic award
    • Compensatory award
Procedural points

A claim for unfair dismissal is brought in the Employment Tribunal and must be submitted within 3 months of the effective date of termination ("EDT") unless the time limit is affected by the ACAS Early Conciliation Scheme, which is compulsory for most claims. See Time Limits.

The EDT will be the date of the expiry of the notice period or, if no notice was given, the date on which the employee became aware or ought reasonably to have become aware that they had been dismissed.

Contacts: