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Unfair dismissal

Subject to a few exceptions, most employees with more than 24 months’ continuous service (assuming the employee began work after April 2012 – take advice on time limits!) have the right not to be “unfairly dismissed”. In certain circumstances, some employees have that right from the date of employment.

Do you need an employment solicitor to help you with a dismissal?

What is a fair dismissal?

Employers wishing to dismiss employees can only do so for one of the following potentially ‘fair reasons’:

  1. Misconduct;
  2. Capability or qualifications;
  3. Redundancy;
  4. Some other substantial reason (a “catch all” phrase designed to catch miscellaneous dismissals which do not appear in the other reasons but are nonetheless fair).

In addition to identifying a fair reason, the employer must also demonstrate that it acted reasonably in treating that reason as sufficient to justify dismissal.

If the employer fails to establish that the reason for the dismissal was one of the potentially fair reasons, or that it acted reasonably in treating that reason as sufficient to justify dismissal, then the dismissal will be unfair and the employee will be entitled to be compensated for any loss incurred as a result of the unfair dismissal.

A fair dismissal procedure

Employers must also ensure that they follow a fair procedure when dismissing employees.

In relation to conduct and performance dismissals, employers are expected to have regard to the ACAS code on disciplinary and dismissal procedures, and tribunals will have a discretion to uplift compensation by up to 25 per cent to penalise employers who fail to do so.

Constructive Dismissal

Employees who resign in response to a serious breach of contract on the part of their employer may be entitled to resign and claim that they have been constructively dismissed.

By way of example, if an employer suddenly cut an employee’s hours or wages with no prior discussion or agreement, or if an employee was continuously bullied or undermined at work, they may have a valid claim for constructive dismissal.

It is good practice for an employee to raise a grievance before presenting a claim for constructive dismissal in the employment tribunal. Whilst a failure to submit a grievance before bringing a claim for constructive dismissal will not bar an employee from bringing a claim, it will affect the level of any compensation awarded.

A successful constructive dismissal claimant would receive compensation for any loss incurred as a result of the unfair dismissal. Please refer to our constructive dismissal pages for more.

Automatically unfair dismissal

Dismissals on certain grounds are deemed to be automatically unfair.

Examples of dismissals which are deemed to be automatically unfair are:

  • Dismissal for reasons related to pregnancy, childbirth, statutory maternity, paternity, adoption, parental or dependant care leave or in connection with making an application for flexible working;
  • Dismissal for making a protected disclosure (i.e.whistleblowing);
  • Dismissal for reasons relating to part-time or fixed-term worker status;
  • Dismissal for raising a health and safety concern; and
  • Dismissal for a reason related to a TUPE transfer.

Depending upon which reason applies, the employee may or may not need 12 months’ continuous service to be eligible to bring a claim.

In some cases of automatically unfair dismissal (i.e. whistleblowing and health and safety reasons), there is no limit of the amount of compensation that can be awarded.

Discrimination based dismissals

Workers are protected from being subjected to discrimination on the grounds of the protected characteristics.

If a worker can show that they have been dismissed for a discriminatory reason, they will be entitled to bring a claim in the employment tribunal to compensation for loss of earnings. They may also be awarded compensation for injury to feelings, as well as in respect of any psychiatric damage suffered as a result of the discrimination (i.e. stress or depression).

There is no limit to the amount of compensation that can be awarded in discrimination claims.

We are experienced in advising both employers and employees about all unfair dismissal matters.

For business law advice call 0845 225 2635

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