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Unfair Dismissal: For most of us, work is key to our sense of identity and self-worth. If things go wrong and you are unfairly dismissed, it can have a devastating effect both financially and emotionally. We help employees and employers alike by giving realistic, practical and jargon-free advice on unfair dismissal to get the best result available.
Who can claim unfair dismissal? To claim unfair dismissal you must be an “employee” as defined by s230 Employment Rights Act 1996. “Workers” cannot normally claim unfair dismissal. Most of the time though, it will be clear whether or not someone is an employee.
How long do I have to be employed to claim Unfair Dismissal? In most cases, employees must have at least two years continuous service in order to be able to claim Unfair Dismissal in the Employment Tribunal. (There are some exceptions to that qualifying period of two years though, including dismissal for being a whistleblower, dismissal for the assertion of a statutory right)
What is dismissal? It is normally obvious when someone has been dismissed, but dismissal can include: Ron renewal of a fixed term contract or Resignation by the employee in some circumstances (constructive dismissal).
When is dismissal fair? In order for a dismissal to be fair, the employer must carry out a fair procedure and must dismiss for certain reasons permitted under s98 Employment Rights Act 1996:
- Capability or qualifications. If the employee is not working to the required standard, it might be fair to end their employment, but that is not straight forward for the employer and can involve a lengthy performance procedure. Equally if the employee is absent due to long term or persistent short term sickness absence, that may be a fair reason to dismiss, even when the sickness is entirely genuine.
- Conduct: Normally, to dismiss for misconduct, the employer will need to follow the ACAS Disciplinary Code and go from First Formal Warning, Second or Final Written Warning, and then dismissal. For example persistent lateness might be a fair reason to dismiss if the employer follows the ACAS procedure. Sometimes the employer will be able to summarily dismiss the Employee for Gross Misconduct.
- Redundancy: Redundancy is the reduction in the need for employees to do work of a particular kind in a particular place. This can include a restructure of the team. Employers often get this wrong.
- Contravention of a statute: For example if the employee no longer has valid permission to work in the UK. Another example would be if the employee fails a DBS check when they have to work with children.
- Some other substantial reason justifying dismissal: This is a catch all provision of other reasons why the employer may have to end someone’s employment. An example would be if a key client of the business refuses to work with that employee anymore. Another example would be if that employee is sent to prison.
When is dismissal unfair? A dismissal will be unfair if the employer fails to carry out a reasonable procedure or does not dismiss for one of those reasons. Examples of dismissals that are not really fair include:
- When a fair capability procedure is not followed before dismissing someone who is underperforming;
- When the employee is summarily dismissed, but the misconduct is not Gross Misconduct.
- When redundancy is not the genuine reason for getting rid of an employee.
What is the test that Tribunal’s use? The Employment Tribunal must decide whether the employer’s decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted.
It does not matter whether the Tribunal would or would not have dismissed the employee if it had been in the employer’s shoes: The tribunal must not “substitute its view” for that of the employer.
The range of reasonable responses test applies as much to the investigation as the reason for dismissal. The more serious the allegation or the potential sanction, the more thorough the investigation should be.
Are you an employee that has been dismissed? Are you an employer considering dismissing someone? Call us today on 0207 118 0950 to speak to an experienced employment solicitor.
Time Limits:
Don’t forget, unfair dismissal claims generally have to be received by the Employment Tribunal no later than three months from the date dismissal. Read More
For more information about the cost of bringing or defending an unfair dismissal or wrongful dismissal claim, see costs.