An unfair dismissal can occur where an employee with at least 2 years’ service is dismissed in any of the following situations:
- There was no fair reason for the dismissal.
- The reason given is not sufficient to justify the dismissal.
- The employer did not follow a fair procedure.
The Employment Rights Act 1996 sets out the five fair reasons for dismissal
- Capability (including performance or ill health)
- Conduct
- Redundancy
- Illegality
- Some Other Substantial Reason (“SOSR”)
Whether the employer has followed a fair procedure is governed by the ACAS Code of Practice on disciplinary and grievance. These measures must be adhered to in the case of any conduct dismissal, but it is advisable that employers adhere to the code of practice even where the dismissal is for another reason.
An employee can appeal a dismissal if they believe that the decision was unfair and they want to challenge it. The employer should provide a right of appeal and details of how to go about this within the dismissal letter.
There are also circumstances where a dismissal will be deemed to be automatically unfair and in these cases the employee does not need to be employed for 2 years to pursue their claim. These include dismissals where the main reason is because of, or related to:
- making a flexible work request
- being pregnant or on maternity leave (or within six months of return)
- wanting to take family leave, for example parental, paternity or adoption leave
- being a trade union member or representative
- taking part in legal, official industrial action for 12 weeks or less, for example going on strike
- asserting a statutory right, for example to be paid the National Minimum Wage
- doing jury service
- whistleblowing
- being forced to retire (known as ‘compulsory retirement’)
- taking action, or proposing to take action, over a health and safety issue
A constructive dismissal claim arises where the employer has conducted itself in such a way as to amount to a fundamental breach of contract, which entitles the employee to resign and treat themselves as being unfairly dismissed. However, the breach of contract has to be so severe as to go to the heart of the contract.
If an employee wants to challenge their dismissal following an unsuccessful internal appeal, they can make a claim to an Employment Tribunal. It is mandatory to first submit their claim to ACAS Early Conciliation, which has a strict time limit of three months less one day from the date their employment ended.
Disclaimer
Please note this blog is for reference purposes only and is only accurate at which the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific Legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any actions. Please contact us if you have any questions on enquiries@thrivelaw.co.uk.
