The law Relating to Unfair Dismissal: A Guide For Employees

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2 May, 2018

Unfair dismissal

The law relating to unfair dismissal is found in the Employment Rights Act 1996 (ERA) as amended.

In order to succeed in defending claim of unfair dismissal, an employer must show that:

it had a competent reason for dismissing the employee;
it was one of the 5 potentially fair reasons to dismiss the employee; and
that it acted reasonably in dismissing the employee for that reason.

Fair dismissal

An employer cannot simply dismiss an employee just because it feels like it. There must be a genuine reason.

The 5 potentially fair reasons for dismissing an employee are:

conduct (i.e. misconduct);
capability or qualifications;
redundancy;
that the employee could not continue to work in the position which s/he held without contravention (either on his/her part or on that of the employer) of a duty or restriction imposed by or under an enactment; or
some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

Note: ‘capability‘ means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and ‘qualifications‘ means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

In determining whether the dismissal is fair or unfair (having regard to the reason shown by the employer) an employment tribunal will consider:

(having regard to the size and administrative resources of the employer’s undertaking) whether the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and
equity and the substantial merits of the case.

Reasonable procedure

An employer will have to demonstrate that it has acted reasonably when dismissing an employee. In any event, an employer will have to show that:

it invited the employee to a disciplinary meeting in writing and informing him/her of the right of accompaniment to that meeting;
it carried out a reasonable investigation (i.e. gathered information and evidence as was necessary) into the circumstances surrounding the allegation, which gave rise to the dismissal;
a meeting was held with the employee where the reason for dismissal was put and the employee was given the opportunity to respond and give reasons why her/his employment should not be terminated;
having heard all the information available, considered the employee’s reasons why s/he should not be dismissed and any alternatives to dismissal, the only option available to the employer was to dismiss; and
in reaching the conclusion to dismiss, the employer should have taken account of the employee’s disciplinary record, length of service, age and work record.

Normally for an employee to claim unfair dismissal, s/he must have been employed continuously for a minimum period of 2 years. Although there are exceptions which are automatically unfair dismissal, where an employee has been dismissed:

for reasons connected with a pregnancy, childbirth, or statutory maternity leave, statutory paternity leave, statutory adoption leave, parental leave or dependent care leave (section 99 of the ERA).
for a health and safety reason (section 100 of the ERA);
because s/he is a shop or betting worker for refusing to work on a Sunday (section 101 of the ERA);
for a reason connected with rights under the Working Time Regulations 1998 (section 101A of the ERA);
for performing functions as an occupational pensions trustee (section 102 of the ERA);
for performing functions as an employee representative on a TUPE transfer or collective redundancy (section 103 of the ERA);
for making a protected disclosure (“whistleblowing”) (section 103A of the ERA);
for asserting a statutory right (section 104(4) of the ERA);
in connection with an application for flexible working (section 80H of the ERA);
related to the national minimum wage (section 104A of the ERA);
for enforcing rights in relation to working tax credit (section 104B of the ERA);
in connection with a prohibited list under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (section 104F of the ERA);
in connection with time off for study and training request rights (section 104E of the ERA);
in connection with carrying out jury service (section 98B of the ERA);
in connection with carrying out the functions of or exercising the rights of an employee representative under the Information and Consultation of Employees Regulations 2004 (ICER) (regulation 30 of the ICER);
in connection with European works council activities (section 108 of the ERA 1996);
related to status as a part-time worker (regulation 7 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000);
related to status as a fixed-term employee (regulation 6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002);
in connection with trade union recognition (Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA);
for trade union membership or non-membership, or participation in trade union activities (sections 152 and 153 of TULRCA 1992);
in connection with exercising the right to be accompanied to a disciplinary or grievance hearing or to a meeting under the now-repealed statutory retirement procedure (section 12 of the Employment Relations Act 1999);
for taking part in protected industrial action (section 238A of TULRCA);
following selection for redundancy on any of the grounds listed above (section 105 of the ERA);
in connection with exercising prescribed rights as an agency worker (regulation 17 of the Agency Workers Regulations 2010); and
in connection with pensions auto-enrolment (section 104D of the ERA).

Constructive unfair dismissal

Constructive dismissal relates to a breach of the employee’s contract of employment. The dismissal will be unfair if the breach is of a fundamental term of the contract, i.e. it goes to the root of the contract.

Terms and conditions of employment will normally be found in a letter of appointment, a written statement of particulars of employment (often referred to as a contract of employment) or in some instances a Staff Handbook. These terms are called “express” terms as they are definite. If they are ambiguous then they will normally be interpreted in favour of the employee.

There are also “implied” terms incorporated within the employment relationship, such as:

mutual trust and confidence, i.e. to act in a manner which is likely to destroy or seriously damage the employment relationship;
good faith and fidelity, i.e. not to do anything that could jeopardise the employer’s business;
not to act arbitrarily, capriciously or inequitably, i.e. to treat all employees the same;
to obey reasonable and lawful orders;
to provide a safe working environment; and
to deal with employee grievances promptly.

The employer does not necessarily have to actually breach the contract but merely threaten it.

If the employer breaches the contract of employment then the employee can bring a claim for constructive unfair dismissal (but only if s/he has been employed continuously for a minimum period of 2 years).

In order to succeed in claim of constructive unfair dismissal, an employee must show that:

the employer was in actual or anticipatory breach of contract;
the breach must be sufficiently serious to justify the employee resigning, i.e. is it a breach of a fundamental term that goes to the root of the contract (e.g. non-payment of wages);
s/he resigned in response to the breach of contract and not for some unconnected reason; and
s/he did not delay too long in terminating the contract of employment.
A claim for breach of contract and/or constructive unfair dismissal can only be brought once the employee’s employment has actually ended.

Note: if claim for breach of contract is brought in the employment tribunal then the former employer can in turn counterclaim for breach of contract (e.g. loss incurred due to the employee leaving prematurely).

Wrongful dismissal

This is a breach of the contract of employment. It will normally occur when an individual has been dismissed and the employer has failed to pay or provide notice as stipulated in the contract and/or has failed to comply with a contractual disciplinary procedure before dismissal.

This applies to both employees and workers and a claim can be made irrespective of length of service.

Contact our employment law solicitors for advice

If you have any questions about anything related to equal pay discrimination claims, or for advice about employment law generally, please contact Marc Jones on 03456 381381, or email marc.jones@ibblaw.co.uk