October 8, 2018

What is an unfair Dismissal?

Before looking into what an unfair dismissal is, its import to distinguish what a fair dismissal is. A fair dismissal is where an employer shows that the reason (or if more than one, then the principal reason), falls into one of the categories set out in the Employment Rights Act 1996.

Fair Reasons For Dismissing An Employee

A dismissal will be fair if the reason for the dismissal was one of the five fair reasons for dismissal and the Tribunal finds that, taking into account the circumstances of the case, that you acted reasonably in using that reason for dismissal.

The five potentially fair reasons for dismissal are:

  • Capability and qualifications:
    • Capability can be split into two main groups – poor performance or ill health capability. These reasons are potentially fair as they relate to the ability to do the job they were employed to do. Qualifications related to degrees and diplomas, as well as any job-related qualifications.
  • Conduct:
    • You can potentially fairly dismiss an employee for reasons relating to their conduct. It could be one serious act of gross misconduct or a series of lesser misconduct.
  • Redundancy:
    • A redundancy is a potentially fair reason for a dismissal where the dismissal is attributable to a business closure, a workplace closure or a reduced requirement of that type of work.
  • Statutory restriction:
    • When an employee could not continue in their current job role due to a restriction imposed by an enactment. As an employer, you must show that the employee’s continued employment would contravene a statutory restriction. Examples of this would be an employee who has lost their driver’s licence but needs to drive for the job.
  • Some other substantial reason:
    • This reason is not clearly defined within the law, as it is designed to cover any fair dismissals which do not fall into any other categories.

As an employer, unless you can prove one (or more) of the above 5 fair reasons was used to dismiss an employee, then your termination of the employee could be deemed to have been unfair.

Automatically Unfair Dismissals

There are circumstances in which a dismissal will be deemed automatically unfair. These include, but are not limited to:

  • Family reasons;
    • Anything connected to pregnancy, maternity, paternity or adoption leave, shared parental leave or time off for dependants;
  • Potential Health and safety reasons;
  • Sunday working;
    • Unfair dismissal of a shop worker for refusing to work on Sunday;
  • Working time regulations;
  • Whistleblowing;
    • Dismissing a person for making a protected disclosure;
  • Flexible working requests;
    • Dismissing in connection with an application for flexible working.

Who Can Claim For Unfair Dismissal?

Only employees (not workers), can claim for unfair dismissal. For an employee to claim, they must have 2 years of continuous service in order to bring a claim.

If a dismissal is automatically unfair, an employee does not need to have a certain length of service to claim; they are automatically protected from the day their employment starts.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.