unfair dismissal

Definition of unfair dismissal

Further reading

Unfair dismissal is the term used in English, Welsh and Scottish Law to describe an employer's action when terminating an employee's employment contrary to the requirements of the Employment Rights Act 1996. The concept of Unfair Dismissal therefore has a narrower meaning than is commonly understood.

Procedure

Claims of unfair dismissal can only be brought before an 'employment tribunal'. There are strict and very short time limits for claims of unfair dismissal. Normally a claim must be brought within three months of the last day of employment, counting the last day of employment as the first day of the three month period. This rule is often summarised as "three months less a day".

The claim must be lodged using the prescribed form ET1 which can be obtained from the Employment Tribunals Service.

Employees may bring such claims themselves, either with or without representation. Solicitors and certain other representatives regulated by the Ministry of Justice may represent employees in Employment Tribunal proceedings. Trade unions may support employees' claims, and independent arbitration and conciliation services may be called upon.

Fair dismissal introduction

There are a number of reasons for dismissal which are automatically unfair and apply to all employees regardless of length of service, such as pregnancy, or having previously asserted certain specified employment rights. For those employees who have a year's continuity of service at the date of dismissal, or who have been dismissed without notice and are within a week of gaining a year's continuity of service, they may only be dismissed if

• the employer dismisses for a potentially fair reason,
• the employer follows a fair procedure, and
• the employer acted reasonably in treating that reason as sufficient for dismissal.

There are now six potentially fair reasons for dismissal:

• a reason related to the employee's conduct
• a reason related to the employee's capability or qualifications for the job
• because the employee was redundant
• the employee had reached normal retirement age in accordance with the Employment Equality (Age) Regulations 2006
• because a statutory duty or restriction prohibited the employment being continued
• some other substantial reason of a kind which justifies the dismissal.

The reason for dismissal will rarely be the basis for a successful unfair dismissal claim, as a Tribunal is not allowed to substitute its view of what is reasonable for that of the employer. The Employment Tribunal will judge the reasonableness of the employer's decision to dismiss on the standard of a "band of reasonable responses" assessing whether the employer's decision was one which falls outside the range of reasonable responses of reasonable employers.[1]

Statement of reasons

The employee is entitled to ask for and receive within 14 days a written statement of reasons for dismissal[2]. The employer can comply by saying anything it believes. A missing, inadequate or untrue statement is itself grounds for a complaint to tribunal[3]. The tribunal can then make its mind up as to the reason for dismissal and will award two weeks' pay for this procedural breach[4]. The employee can use the statement to block the employer from changing the reason in its defence to a claim or to attack its credibility if there is such a change.

Dual claim - unfair redundancy

If the employee claims redundancy at the same time then the burden of proving redundancy is on the employee[5]. If the claim was for redundancy and not unfair dismissal then the burden would be on the employer to disprove redundancy[6].

Remedies

If the tribunal finds unfair dismissal it can order re-instatement (old job back) or re-engagement (new job), and/or compensation. Further guidance

- Acas a quasi non-governmental organisation is empowered to promulgate a code of practice on discipline and grievances. As part of their statutory role they also provide advice and conciliation services, and can be contacted by telephone on 0845 747 4747 or on their website at www.acas.gov.uk In particular, note the article on unfair dismissal at http://www.acas.org.uk/index.aspx?articleid=933

- A list of solicitors can obtained from the Law Society of England and Wales

References

1. HSBC Bank plc (formerly Midland Bank plc) v. Madden(case A1/00/2086) and Foley v. Post Office (case A1/99/0746) [2000] ICR 1283, CA on 31st July 2000 (also reported at [2000] IRLR 827 and HSBC Bank plc (formerly Midland Bank plc) v. Madden, CA, Times Law Reports, 17th August 2000).
2. ERA96 s92
3. ERA96 s93
4. ERA96 s93(2)
5. Employment Tribunals Act 1996 s7(6)
6. ERA96 s163(2)