Unfair Dismissal

Unfair dismissal is the most common claim to be brought following termination. Settlement agreements are frequently used on the back of negotiations for compensation to settle a potential unfair dismissal claim.

This guide will assist you to understand unfair dismissal, in what circumstances you may have a claim for unfair dismissal and how you can use this to negotiate a settlement agreement.

Have you been dismissed?

The law accepts that you have been ‘dismissed’ or what is commonly referred to as sacked by your employer when:

1. Your employment contract has been terminated (with or without notice);
2. You terminate your contract (with or without notice);
3. You have a fixed term contract which comes to an end.

What is ‘fair’ dismissal

It is important to understand what constitutes a ‘fair’ dismissal before you can consider what could be considered as ‘unfair’ dismissal.

There are currently five fair reasons for dismissal:

Capability

This means you are not capable of performing your job properly whether this is due to performance issues or due to ill health/sickness absence.

Conduct

This reason is often used where there is issues with attendance, a failure to follow work protocols or actions classed as ‘gross misconduct’ such as violence, theft and harassment.

Redundancy

If there is genuine redundancy situation and the process is fair.

You breach a Statutory Restriction

If your job involves working with vulnerable adults or children but you are placed on the DBS Barred List as unable to continue in that type of work or your primary role involves driving for your employer but you lose your licence, your employer can fairly dismiss you.

Some other substantial reason

An employer can fairly dismiss any other ‘substantial’ reason that does not fall underneath any of the 4 fair reasons above. This can include a dismissal of an employee where there are concerns relating to the safeguarding of children or vulnerable adults, but where the employer does not have grounds for a misconduct dismissal or a dismissal because of a personality clash which makes it impossible for the employee and employer to work together.

What is ‘unfair’ dismissal?

A dismissal can be ‘unfair’ for the following reasons:

• The reason for your dismissal was for not for one of the 5 fair reasons set out above;
• If one of the 5 fair reasons was used, the process utilised by the employer was not fair;
• The dismissal was not within the ‘range of reasonable responses’ of your employer;
• Dismissal for an ‘automatically’ unfair reason.

If your dismissal was for one of the reasons set out above it will be ‘unfair’. These are explained in more detail below.

What is the 2 year rule?

In order to pursue a claim for unfair dismissal an employee needs 2 years o more continuous service. If you have less than 2 years, your employer does not have to find a fair reason to terminate your contract and can simply give you notice to bring the relationship to an end.

Dismissal procedure ‘unfair’

An employment tribunal will always look at the procedure used by the employer to dismiss you even if the reason for the dismissal was for a fair reason. In simple terms the procedure to dismiss your employer should follow a formal and reasonable procedure. The nature of the process to be followed by your employer will depend on the ‘fair reason’ chosen for dismissal. When an employer dismisses for performance or capability a minimum, they should follow the ACAS code of practice procedure.

A tribunal will also consider the size and resources available to an employer. The bigger the employer the more scrutiny their investigation and procedure sued for the dismissal will face. Your employer should follow there own published internal procedure which may be set out in your employment contract or their employee handbook. A typical procedure will include verbal warnings, an opportunity for you to resolve the situation, an opportunity for you to defend yourself, and written final warnings before your dismissal.

Dismissal was not within the ‘range of reasonable responses’

An employer’s decision to dismiss will be further scrutinised by an Employment Tribunal if a claim for unfair dismissal if a claim for unfair dismissal is brought. The tribunal will need to decide whether an employer's decision to dismiss the employee falls within the "range of reasonable responses, which includes all responses that an employer, acting reasonably in the same circumstances, might have adopted.

If an employer has acted in a way that a reasonable employer might have done in the same situation; the employment tribunal should find that it acted reasonably. The tribunal will again take into consideration the size and administrative resources of the specific employer.

Automatically unfair dismissals

If you have been dismissed for one of the following reasons set out below you do not need 2 years continuous service because the dismissal is automatically unfair under employment laws:

1. Dismissal related to maternity or paternity;
2. Discrimination;
3. Dismissal related to an employee’s membership of a trade union;
4. Refusal to breach Health & Safety;
5. Dismissal for refusal to work over 48 hours a week;
6. Dismissal for requesting a National Minimum Wage;
7. Dismissal for whistleblowing.

If you have been dismissed for any of the above reasons your dismissal will automatically be unfair and it does not matter how long you have worked for your employer. This could be 1 day or 23 months.