The laws relating to the protection against unfair dismissal are contained in the Employment Rights Act 1996 which provide that an employer that dismisses a qualifying employee will be liable to a claim for unfair dismissal in the employment tribunal unless:
It can show 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.
It is for the employer to prove that the potentially fair reason is the real reason for the dismissal.
There are five potentially fair reasons:
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:
- Theft or dishonesty
- Disobeying reasonable orders
- Alcohol or drug abuse
- Repeated poor attendance
- Disclosure of confidential information
- Violence at work
- Unauthorised absence from work
- Breach of certain terms of contract such as breach of the duties of good faith and mutual trust and confidence
Most employers will include unacceptable misconduct in their employment contracts and make it clear that this is not an exhaustive list. In order to take protection on the grounds of conduct, the employer must establish that he believed the employer to be guilty of misconduct, that he had reasonable grounds for having such belief and he formed these beliefs on the back of a reasonable investigation into the matter.
b) Capability or Qualifications
Employers can fairly dismiss employee for his poor performance or attitude. Employee may also be dismissed fairly for their ill health. This may be a result of a frequent short-term absences or single long- term absence. Examples include:
- Dismissing employee for ill health capability
- Repeated poor attendance which may have resulted in a conduct or capability dismissal.
A dismissal will relate to qualification if the employees dismissal relates to any “diploma, degree or any other academic or professional qualification”. Qualification dismissals include:
- Where the employee loses its qualification during employment
- Where the employee is employed on the understanding that they will obtain certain qualifications and they fail to do so.
- Where the employer’s requirement changes
- Soon after recruitment, the employer realises that the employee does not have necessary qualification.
A dismissal on the ground of redundancy is a potentially fair dismissal. The employer must show that either:
- The Dismissal of the employee was as a result of the business not carrying on the trade to which the employee was hired (business closure).
- Dismissal of the employee was due to ceasing to carry on that business in the place where the employee was so employed (workplace closure).
d) Statutory restriction
A dismissal is potentially fair if the employee’s continued employment would contravene any restriction or duty imposed by or under any enactment. It is necessary for employer to show that the employee’s continued employment would actually contravene statutory restriction. Mere reasonable belief will not be enough. Examples include:
- Dismissal because the employee has lost their driving license and they need to drive to do the job.
- Dismissal because continued employment will breach the immigration rules.
e) Some other substantial reason
The final potentially fair reason for dismissal is for “some other substantial reason”. This category is designed to cover those potentially fair dismissals which do not fall within one of the above categories. Examples include: dismissals because of age.
Once the employer established a potentially fair reason for the dismissal, the Employment tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason. The tribunal will look into whether the employer acted reasonably in treating it as a sufficient reason for dismissing the employee and also in accordance with equity and the substantial merits of the case.
Who can claim unfair dismissal?
For an employee to be able to bring a claim for unfair dismissal, an individual must be 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.
Employees who wish to make a claim can do so in the employment tribunal by filing a claim for unfair dismissal and submitting a form ET1.
The employee must bring the claim for unfair dismissal within three months of the effective date of termination. However the tribunal may extent the time period in exceptional circumstances.
Burden of Proof
Employee’s burden- An employee must demonstrate:
- He had an employment contract
- He had been employer for at least one year
- He had been dismissed either actually or constructively
Employer’s burden- They must show that:
- The reason for the dismissal
- That the reason for dismissal falls within one of the potentially fair reasons
With unfair dismissal claims or prospective claims, it is quite common for employers to consider offering the employee a compromise agreement.