Unfair Dismissal

Time Limits for bringing an unfair dismissal claim is three months (less one day) from the date of dismissal.

You normally have to have one years continuous service before you can bring a claim for unfair dismissal. There are exceptions if you the employee is dismissed for certain reasons. For a list of these reasons go to Automatically Unfair Dismissals below. If you are unsure of what would qualify for the date of the dismissal, or believe that the dismissal may be automatically unfair, contact us on 01928 736672 or complete our questionnaire.

If the employee has resigned in response to something the employer has done, see Constructive Dismissal

There are six potentially fair reasons for dismissal. It is up to the employer to show that the employee was dismissed for one of the potentially fair reasons.

1. Conduct
2. Capability
3. Redundancy
4. Statutory Restriction
5. Retirement
6. Some Other Substantial Reason

1. Conduct

It is potentially fair to dismiss an employee for misconduct, which may be either a single act of serious misconduct or a series of acts that are less serious. This could include misconduct such as:

• Disobeying reasonable orders.
• Theft or dishonesty.
• Breach of certain terms of the contract (including breach of the duties of good faith and mutual trust and confidence).
• Violence at work.
• Unauthorised absence from work.
• Alcohol or drug abuse (although this may be treated as an illness).
• Disclosure of confidential information, competing or preparing to compete.

2. Capability or qualifications

The employee's lack of capability or qualifications to do their job is a potentiality fair reason for dismissal.
Capability
For the purposes of an unfair dismissal, "capability" should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality." The capability must relate to the work that the employee was employed to do. A dismissal may be fair even if the employee is still able to do part of their job.

In practice, capability dismissals fall into two main groups:

• Dismissal because of an employee's poor performance or attitude.
• Dismissal because of an employee's ill health. This may be a result of a single long-term absence or frequent short-term absences.

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. This can include qualifications that are awarded by the employer itself.

3. Redundancy

A dismissal on the grounds of redundancy is a potentially fair dismissal. As to whether the dismissal is for a genuine redundancy reason see Redundancy.

4. 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 (section 98(2)(d), ERA 1996).
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.

5. Retirement

The Age Regulations amended ERA 1996 to introduce a new potentially fair reason for dismissal, retirement. For further information see Retirement

6. Some other substantial reason (SOSR)

The final potentially fair reason for dismissal is that the dismissal is for "some other substantial reason" (section 98(1)(b), ERA 1996). 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.

Legislation provides that dismissal of a temporary replacement employee will be potentially fair for SOSR where:

• The temporary employee is dismissed to allow for the return of an employee who has been away because of medical or maternity suspension or pregnancy, childbirth or adoption leave; and
• The employer informed the temporary employee in writing when they were employed that their employment would terminate on the return of the absent employee.

The courts and tribunals have held that the following dismissals fall within SOSR:

• Dismissal of an employee for refusal to sign restrictive covenants.
• Expiry of a fixed-term contract
• Dismissal because of an employee's difficult personality
• Dismissal because of third party pressure to dismiss
• The fact that the employee is in prison
• Dismissal as part of a necessary reorganisation of the business (although this could also be a redundancy, see Redundancy

Fair dismissal procedure

Once a potentially fair reason for dismissal has been established the employer must act reasonably in treating that reason as sufficient to justify dismissal. An employer has to follow a fair procedure when dismissing an employee. Some of these concepts are enshrined in the ACAS Code of Practice which tribunals must take into account when considering an employer's conduct.

However, if it is found that dismissal was unfair because of the procedural failing, the tribunal should reduce the amount of compensation to reflect the chance that there would have been a fair dismissal if the dismissal has not been procedurally unfair (known as a Polkey deduction).

Automatically unfair dismissals

In certain circumstances, a dismissal is deemed automatically unfair.

With respect to many of the circumstances listed below, the dismissal will be automatically unfair even if the employee does not have 1 year’s continuous employment with the employer. For clarification on the point, therefore, please contact us either by telephoning us on 01928 736672 or complete our questionnaire

• Dismissal where the employer has not completed an applicable statutory dismissal or disciplinary procedure
• Unfair dismissal for a health and safety reason
• Unfair dismissal for reasons connected with pregnancy, childbirth, or statutory maternity, paternity, adoption, parental or dependant care leave
• Unfair dismissal for a reason connected with rights under the Working Time Regulations 1998 (WTR)
• Unfair dismissal for making a protected disclosure
• Unfair dismissal for asserting a statutory right listed in section 104(4) of ERA 1996
• Unfair dismissal in connection with an application for flexible working. The one-year qualifying period for this right was removed on 6 April 2005 by section 41 of the Employment Relations Act 2004.
• Unfair dismissal related to the national minimum wage (NMW)
• Unfair dismissal in connection with carrying out jury service
• Unfair dismissal for taking part in protected industrial action
• Unfair dismissal of a shop or betting worker for refusing to work on a Sunday
• Unfair dismissal following selection for redundancy on any of the grounds listed above
• Unfair dismissal for performing functions as an occupational pensions trustee
• Unfair dismissal for performing functions as an employee representative on a TUPE transfer or collective redundancy
• Unfair dismissal for enforcing rights in relation to working tax credit
• Unfair dismissal in connection with information and consultation agreement activities
• Unfair dismissal in connection with European works council activities
• Unfair dismissal related to status as a part-time worker
• Unfair dismissal related to status as a fixed term employee
• Dismissal because of a spent conviction
• Dismissal where the sole or principal reason for the dismissal is a TUPE transfer itself or a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.

There is no maximum compensatory award in most cases.