Unfair Dismissal

If you are an employee with at least 2 years’ service you have the statutory right not to be unfairly dismissed - that is if the reason for the dismissal fails to fall within one of the “fair” reasons for dismissal.  

Dismissals which are automatically unfair

There a number of situations in which a dismissal is considered automatically unfair. You are not required to have two years’ continuous employment to be eligible to make an automatic unfair dismissal claim.

Examples of automatically unfair dismissal scenarios include:

  • Dismissals relating to pregnancy, statutory maternity, paternity, adoption, parental, shared parental leave and time off for dependants.
  • Dismissals relating to whistleblowing; and
  • Dismissals relating to trade union membership.

Fair reasons for dismissal

 For a dismissal to be fair, the reasons for the dismissal must fall into one of the five categories outlined below.

Conduct

It is potentially a fair reason to be dismissed for misconduct. The misconduct could either be one act of gross misconduct or a series of smaller acts of misconduct. Examples of misconduct include theft, disobeying reasonable request, dishonesty, and unauthorised absences from work.   

Capability/qualifications

It is a potentially fair reason to be dismissed if you do not possess the correct level of capability or qualifications to carry out the work that you were employed to do. Capability dismissals fall into two categories; dismissals for poor performance and dismissals because of ill-health. It is important to note that if you have been dismissed on grounds of ill-health and it is related to a disability, the dismissal may amount to unlawful disability discrimination.

Redundancy

Redundancy is a potential fair reason for dismissal. In order for the dismissal to be fair there must be a genuine redundancy situation and a fair process must be followed.  

Redundancy occurs in three situations:

  1.  business closure of the employer;
  2. workplace closure; and
  3. a reduced requirement for the number of employees to carry out the work.

There are a number of circumstances where selection for redundancy is automatically unfair, for example being selected for redundancy because you have taken time out of work to attend jury service. 

Illegality

If an employer makes a decision to dismiss you on the basis that your continued employment would be illegal then the decision is potentially a fair reason. For example, the decision to dismiss an employee who is employed as a delivery driver and is disqualified from driving is potential a fair reason to be dismissed.

Some other substantial reason

“Some other substantial reason” is another potentially fair reason for being dismissed. The purpose is to catch all other potentially fair reasons for dismissal which do not fall into the other specified categories.

 In addition to having a fair reason, the employer must also follow a fair process and the decision to dismiss must fall within the range of reasonable responses of a reasonable employer in the same circumstances.   

Remedies for unfair dismissal

There are three different remedies for successful unfair dismissal claims.

  1. Reinstatement to your same role with the employer;
  2. Re-engagement of your employment with the employer but in a different role; and
  3. Compensation. 

 Compensation is the most common remedy sought by employees and consists of two main elements, the basic award and the compensatory award.

The basic award is based on a calculation which takes into account your length of service, age and pay. The purpose of the compensatory award is to put you back in the financial position you would have been in had you not been unfairly dismissed. The award is to cover you to the point you find new employment at the same rate or for a period which the employment tribunal thinks is fair and reasonable but is subject to a limit of years’ earnings.

There is a duty to take reasonable steps to reduce your losses for example secure new employment as soon as possible after being dismissed. Failure to do this could result in a reduction of the amount of compensation awarded by the tribunal.

There is also a duty to comply with ACAS Code of Practice which concerns the procedure followed by you and your employer. Failure to comply with the ACAS Code of Practice by either you or your employer may result in an adjustment of the award made.

If you have been dismissed but you feel that the decision to dismiss you was unfair please contact our employment team for further assistance. There is a time limit of 3 months to make a claim so it is important to act quickly to ensure that this deadline is not missed.

How can Verisona Law help?

Verisona Law has a team of employment law advisers who are happy to help you explore whether you have a claim and assist and can provide advice on how best to pursue it. Feel free to speak to a member of our team on 02392 98 1000.

  • Sue Ball

    Sue Ball

    Principal Lawyer, Head of Employment & Southern Region

    T: 023 9231 2053

    M: 07815 792 923

  • Harvinder Pahal

    Harvinder Pahal

    Solicitor - Employment

    T: 023 9231 2074



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