Every employee who has the qualifying period of service has the right not to be subject to an unfair dismissal.
If there is to be a dismissal, an employer must show 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.
The 5 categories are as follows:
- Capability – The employee lacked capability or qualification (in relation to the work you were employed to do).
- Conduct – The dismissal was a result of the conduct of the employee (such as dishonesty, poor attendance, failure to follow instructions, and which can amount to gross misconduct).
- Redundancy – If there was a genuine redundancy situation.
- Illegality – The continuation of employment would contravene a statute, for example you need to drive in your employment, but you have been banned due to speeding.
- Some Other Substantial Reason (“SOSR”). This would be a dismissal which does not fall within any of the above reasons. Examples would include where you have a personality clash with your employer, a breakdown in the working relationship with your employer or where there is a non-renewal of your fixed-term contract such as a maternity leave cover. There could also be a dismissal under, or where you have unreasonably refused to accept new changes to your terms and conditions. But each case will be determined on its own facts.
Unless your employer can prove one (or more) of the above 5 fair reasons for dismissal, then your termination of employment will be deemed to have been unfair.
Is it that simple, if my employer can show a “fair reason” for dismissal?
No, it isn’t. Even if your employer does prove that the dismissal is for one of the above fair reasons, it is still up to the Employment Tribunal to determine whether the dismissal was fair or unfair. The Employment Tribunal will need to decide whether the dismissal was within the ‘range of reasonable responses’ of your employer. In other words, your employer will have the onus of showing that they have acted reasonably in treating that reason as a sufficient one for dismissing you. For example, your employer may have had grounds for dismissing you because of your performance or conduct. This doesn’t mean, however, that it was reasonable to take this step, rather than first giving you a warning or discussing the matter more informally. If a tribunal believes that no reasonable employer would have dismissed you in the same circumstances, then the dismissal will still be unfair. In making its decision, the tribunal will take into account the size and administrative resources of your employer.
What is the difference between Constructive Dismissal and Unfair Dismissal?
An Unfair Dismissal is where you have been sacked in a way that is unlawful. This is usually because either one of the 5 fair reasons for dismissals do not apply, or there has been a failure of process, or it is not reasonable for you to have been dismissed.
A Constructive Dismissal, on the other hand, is where you are forced to resign in response to your employer’s conduct, which has made your position untenable. Although it’s referred to as a “dismissal” in law, it is in practical terms a resignation.
How important is it for my employer to follow a correct process?
It is very important. Even if there is a justified reason to dismiss you, the dismissal will still be unfair if your employer has not followed a correct process. This could be, for instance, where your employer has not followed a proper consultation or selection process in a redundancy situation. Alternatively, your employer may not have followed the ACAS Code of Practice guidelines in a dismissal based on misconduct, or performance, The Code includes provisions that there should be sufficient investigations, evidence, warnings (in most cases) and the right to be accompanied at meetings.
What is the qualifying period of employment necessary to make a claim for Unfair Dismissal?
You usually need to have been continuously employed with the same employer for at least 23 months and 3 weeks without a break and not already been served with notice expiring before your 2 years of employment.
For more information on Unfair Dismissal or to discuss your situation at work, please contact us.
