What is Unfair Dismissal?

In order to bring a claim for unfair dismissal, an employee must have been dismissed. There will be a dismissal if:

  • The employer terminates the employment, either summarily  (that is, with immediate effect) or on notice.
  • The employee resigns (with or without notice) and can establish that they were constructively dismissed. This requires the employee to show that:
    • There was a fundamental breach ) of contract by the employer.
    • They resigned because of that breach.
    • They did not delay before resigning (as a delay can mean that the employee has affirmed the contract and lost their right to claim constructive dismissal).

What is a fair dismissal?

For a dismissal to be fair:

  • The employer must have a potentially fair reason for the dismissal and
  • The employer must have acted reasonably in treating that reason as sufficient to justify dismissing the employee

Potentially fair reasons for dismissal

There are six potentially fair reasons for dismissal under section namely conduct, capability, redundancy, breach of a statutory restriction, retirement and "some other substantial reason" (SOSR).

  • The reason for a dismissal may fall into more than one of the six potentially fair categories, as there is a certain degree of overlap between them.

Employees have the right to be provided with a written statement setting out the reasons for their dismissal, and this document may be used in evidence in any subsequent tribunal proceedings.

Qualifications

A dismissal will relate to an employee's qualifications if it relates to any "degree, diploma or other academic, technical or professional qualification" relevant to the employee's position

Redundancy

A dismissal on the grounds of redundancy is a potentially fair dismissal. Law of ERA 1996 provides that there is a redundancy where the dismissal is "wholly or mainly attributable to" the employer either:

  • Ceasing or intending to cease to carry on the business for the purposes of which the employee was employed by it (business closure).
  • Ceasing or intending to cease to carry on that business in the place where the employee was so employed (workplace closure).
  • Having a reduced requirement for employees to carry out work of a particular kind or to carry out work of a particular kind at the place where the employee was employed to work (reduced requirement for employees).

In some circumstances, a dismissal on the grounds of a (genuine) redundancy will be automatically unfair, for example where the employee was selected for redundancy because they made a protected disclosure. In other cases, the employer will have to establish that (in the circumstances) it acted reasonably in dismissing the employee.

Statutory restriction

A dismissal is potentially fair if the employee's continued employment would contravene any duty or restriction imposed by or under any enactment.

Examples of dismissals that fall within this category will often result from specific rules governing the job in question, but may include, for example:

  • Dismissal because continued employment would breach the immigration rules Dismissal because the employee has lost their driving licence and they need to drive to do the job.
  • Dismissal because the employee has failed to obtain certain vocational qualifications.
  • Dismissal because the employer discovers that the employee has (or has received) a criminal record.

Retirement

Retirement is a potentially fair reason for dismissal. Retirement will be the only reason for the dismissal (and any other reasons should be disregarded) where:

  • The employee has no normal retirement age (NRA) and the operative date of termination falls on or after the date on which the employee reaches 65.
  • The employee has an NRA (which is either 65 or older) and the operative date of termination falls on or after the date when the employee reaches that age.
  • The employee has an NRA below 65 and that retirement age has been objectively justified.

Some other substantial reason

The final potentially fair reason for dismissal is that the dismissal is for "some other substantial reason". There is no further statutory guidance on what is meant by the term, but it is presumably designed to catch potentially fair dismissals that would not fall into any of the other categories.

Who can claim unfair dismissal?

In order to bring a claim for unfair dismissal, an individual must usually be both an employee and have at least one year's service. However, there are a few limited exceptions to both these requirements and a qualifying employee may not be able to bring a claim in some circumstances.

Bringing a claim of unfair dismissal

Procedure

Employees who believe that they have been unfairly dismissed should bring a claim in the employment tribunal for unfair dismissal on a form ET1.

Time limits

The employee must bring the claim for unfair dismissal within three months of the effective date of termination. So if employment ended on 13 March, the claim must be submitted on or before 12 June.

The tribunal will only extend the time for bringing a claim where it is satisfied that it was "not reasonably practicable for the complaint to be presented before the end of that period of three months". However, the claim must still have been presented "within such further period as the tribunal considers reasonable" in order for an extension to be granted.

Remedies

If the tribunal finds that the employee was unfairly dismissed, it will then decide what remedy to award.

In considering remedies, the tribunal will consider whether to make any of the following awards:

  • Reinstatement.
  • Re-engagement.
  • Compensation.