Unfair Dismissal
Dismissal occurs when an employer terminates an employee’s contract of employment. If the employee feels this is unfair, then he/she may complain to an employment tribunal.
Just as formal disciplinary action should only be necessary if informal methods have failed to resolve the problem, so dismissal should be the last resort in terms of sanctions. The principles for handling disciplinary situations up to and including dismissals are set out in the Acas Code of Practice on Discipline and Grievance. Although the Code is not, in itself, legally enforceable, employment tribunals will nonetheless take its provisions into account when considering relevant cases.
In certain circumstances an employee may resign because their employer has broken a significant term of the contract. This is known as constructive dismissal.
When is a dismissal fair?
Dismissal is normally fair only if your employer can show that it is for one of the following reasons:
- a reason related to your conduct
- a reason related to your capability or qualifications for the job
- because you were redundant
- because a statutory duty or restriction prohibited the employment being continued
- some other substantial reason of a kind which justifies the dismissal and that they acted reasonably in treating that reason as sufficient for dismissal.
Am I protected against unfair dismissal?
Employees have the right not to be unfairly dismissed. In most circumstances you must have at least one year's continuous service before you can make a complaint to an employment tribunal. However, there is no length of service requirement in relation to 'automatically unfair grounds'. Also, the requirement is reduced to one month if you claim to have been dismissed on medical grounds as a consequence of certain health and safety requirements that should have led to suspension with pay rather than to dismissal.
A complaint of unfair dismissal must be received by an employment tribunal within three months of the effective date of termination of the employment (usually the date of leaving the job) unless the tribunal considers this was not reasonably practicable. Time limits may also be extended where statutory procedures apply - subject to certain conditions.
If both you and your employer agree, instead of going to an employment tribunal, the case may be heard by an arbitrator under the Acas Arbitration Scheme. If a tribunal establishes that a dismissal has taken place it is normally for your employer to show that it was for a fair reason and that they have, as a minimum, followed the statutory disciplinary procedures. In such cases the tribunal must then decide whether, in the circumstances, your employer acted reasonably in treating that reason as sufficient for dismissal.
When is a dismissal 'automatically unfair'?
Dismissals are classed as 'automatically unfair', regardless of the reasonableness of your employer's action, if you are exercising specific rights to do with:
- 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 and trade union membership grounds and union recognition
- part-time and fixed-term employees
- discrimination: including protection against discrimination on the grounds of age, sex, race, disability, sexual orientation and religion or belief
- pay and working hours: including the Working Time Regulations, annual leave and the National Minimum Wage
Does my employer have to tell me why I'm being dismissed?
Employees who are dismissed and have completed at least one year's continuous employment are entitled to receive, on request (orally or in writing), a written statement of reasons for dismissal within 14 days. An employee dismissed during:
- her pregnancy or her ordinary or additional maternity leave
- his or her ordinary or additional adoption leave is entitled to a written statement of the reasons regardless of length of service and regardless of whether or not the request was made.