What is unfair dismissal and how can I avoid it?

The Employments Rights Act 1996 (ERA) lists 5 fair reasons to dismiss an employee. If the employer fails to dismiss an employee for a genuine reason and by following a fair process, then the employee could bring a claim of unfair dismissal to an employment tribunal. 

To bring a claim of ordinary unfair dismissal, the employee must have at least 2 years service. Well actually its one week short of 2 years service as statutory notice would take them over the 2 year qualifying period. So what can employers do to ensure that a claim of unfair dismissal isn’t brought against them?

Fair reasons to dismiss

As mentioned above, the ERA lists 5 potentially fair reasons to dismiss an employee. These are:

  • Misconduct (where someone has done something that is deemed unacceptable).
  • Capability (where someone doesn’t have the right qualifications to do the job or can’t do it to the required standard)
  • Redundancy (where the role no longer exists)
  • Where the employee isn’t legally allowed to do the job (such as a driver who loses their licence)
  • Some other substantial reason.

However the decision to dismiss must also be reasonable based on the evidence available at the time. The tribunal will also take into account the size of the organisation concerned and the resources it has available to it.

Following a reasonable procedure

ACAS is a great resource for determining what a reasonable procedure is. If you don’t have policies in your organisation, these will give you a guide as to how you should manage these tricky issues. 

For example in cases of misconduct, you should follow a number of steps to ensure it is fair. This includes:

  • investigating the issue, 
  • giving written notice of a disciplinary hearing, providing sufficient information about the allegations and providing the opportunity for the employee to bring a companion.
  • holding a meeting where there is a case to answer
  • providing the outcome in writing 
  • and then allow an appeal.
If you dismiss an employee whilst failing to follow these steps, they could bring a claim of unfair dismissal even if the reason for dismissing was fair.

Automatic unfair dismissal

Although the service requirement is normally two years for unfair dismissal, there are occasions where the service requirement doesn’t apply. These are called automatic unfair dismissal. A claim for automatic unfair dismissal can be made where the dismissal was:
  • for reasons connected with a pregnancy, childbirth, or statutory maternity leave, statutory paternity leave, statutory adoption leave, parental leave or dependent care leave (section 99 of the ERA).
  • for a health and safety reason (section 100 of the ERA);
  • because s/he is a shop or betting worker for refusing to work on a Sunday (section 101 of the ERA);
  • for a reason connected with rights under the Working Time Regulations 1998 (section 101A of the ERA);
  • for performing functions as an occupational pensions trustee (section 102 of the ERA);
  • for performing functions as an employee representative on a TUPE transfer or collective redundancy (section 103 of the ERA);
  • for making a protected disclosure (“whistleblowing”) (section 103A of the ERA);
  • for asserting a statutory right (section 104(4) of the ERA);
  • in connection with an application for flexible working (section 80H of the ERA);
  • related to the national minimum wage (section 104A of the ERA);
  • for enforcing rights in relation to working tax credit (section 104B of the ERA);
  • in connection with a prohibited list under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (section 104F of the ERA);
  • in connection with time off for study and training request rights (section 104E of the ERA);
  • in connection with carrying out jury service (section 98B of the ERA);
  • in connection with carrying out the functions of or exercising the rights of an employee representative under the Information and Consultation of Employees Regulations 2004 (ICER) (regulation 30 of the ICER);
  • in connection with European works council activities (section 108 of the ERA 1996);
  • related to status as a part-time worker (regulation 7 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000);
  • related to status as a fixed-term employee (regulation 6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002);
  • in connection with trade union recognition (Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA);
  • for trade union membership or non-membership, or participation in trade union activities (sections 152 and 153 of TULRCA 1992);
  • in connection with exercising the right to be accompanied to a disciplinary or grievance hearing or to a meeting under the now-repealed statutory retirement procedure (section 12 of the Employment Relations Act 1999);
  • for taking part in protected industrial action (section 238A of TULRCA);
  • following selection for redundancy on any of the grounds listed above (section 105 of the ERA);
  • in connection with exercising prescribed rights as an agency worker (regulation 17 of the Agency Workers Regulations 2010); and
  • in connection with pensions auto-enrolment (section 104D of the ERA).

Constructive dismissal

Where the employer has committed an act so serious that the employee can’t remain in employment any longer, they can resign and claim constructive dismissal. Gov.uk lists the following advice:

“The reasons you leave your job must be serious, for example, they:

  • do not pay you or suddenly demote you for no reason
  • force you to accept unreasonable changes to how you work – for example, tell you to work night shifts when your contract is only for day work
  • let other employees harass or bully you

Your employer’s breach of contract may be one serious incident or a series of incidents that are serious when taken together”.

Got a complex employee relations issue?

Don’t struggle alone! Call Rob on 07494 161169 or Nicci on 07908 875146 or click the below button to schedule a free 30 minute consultation.

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