Unfair Dismissal

An employer who dismisses an employee who has worked with one years continuous service can be liable to an unfair dismissal claim, unless, they can show that the dismissal was for a potentially fair reason (there are five) or the tribunal finds that they acted reasonably in their decision to dismiss the employee. This qualifying period is due to be increased to two years in April 2012. The qualifying period is calculated from an employee’s first day and the work does not need to be full-time.

There are different ways in which an employee can be found to be dismissed. Usually a dismissal is made by the employer terminating the employee’s employment contract. However, a dismissal can also arise if the employee resigns from their position but can show that the resignation was due to being constructively dismissed. A dismissal can also arise if an employer doesn’t renew a fixed term contract on expiry on the term.

It is for an employer to show that a dismissal is for a potentially fair reason. Under Employment Rights Act 1996, these five reasons are conduct, redundancy, capability, breach of a statutory restriction or some other substantial reason.

Even if an employer can prove that the dismissal was for a potentially fair reason, the dismissal still needs to be reasonable and this is for the Tribunal to decide.

In certain situations a dismissal is classified as automatically unfair. In these situations, there is no requirement on the qualifying period as per other dismissals. In automatically unfair dismissals the reward will be capped unless there are health and safety issues involved in the dismissal.

There are also situations in which a dismissal will be automatically fair, these include dismissals in the interests of national security, if the employer can prove that the employee was taking place in unofficial industrial action, if the employee was taking part in official industrial action but the employer has dismissed all the employees taking part in the action and if the employer was conducting a lock out and dismissed all employees involved in the dispute.

It is obviously only possible for an employee to bring an unfair dismissal claim which means it is not possible for self-employer or workers to being such a claim. The definition of employee is defined in the Employment Rights Act 1996. If an employee dies after being dismissed, their personal representative is able to bring a posthumous claim on their behalf.

The Employment Rights Act which enshrines the rights to claim for unfair dismissal only cover England, Wales and Scotland. Northern Ireland is not covered by this legislation. In relation to jurisdiction, it is held that an employee can bring an unfair dismissal claim if they were working in Great Britain at the time of their dismissal rather than what their employment contract is deemed to have stated.

If an employee believes that they have a claim for unfair dismissal they first have to file an ET1 and submit this to the Tribunal. There is a limitations date of 3 months from the date of the termination of their employment. If the claim is submitted after this date, there is to be a hearing for the Tribunal to decide whether they have jurisdiction to hear the claim.

At the Tribunal it is for the employee to show that they were unfairly dismissed. If this is able to be shown by the employee, it is then for the employer to show that this was for a potentially fair reason.