Unfair dismissal
What is a dismissal?
This is when your employer ends your employment. This includes termination of your employment with or without notice, when your fixed term contract comes to an end and is not renewed or when you end the contract due to your employer’s conduct (known as constructive dismissal).
What is unfair dismissal?
If you are an employee that started new employment on or after 6 April 2012 then you must have been employed for a continuous period of two years to claim unfair dismissal. If you are an employee that started new employment before 6 April 2012 then you must have been employed for a continuous period of one year to claim unfair dismissal.
A dismissal can be a fair dismissal. Examples of potentially fair reasons for dismissal include misconduct, redundancy or capability. It is for the employer to show that the reason for dismissal was an acceptable reason. A Tribunal will then consider whether your employer acted reasonably or unreasonably in treating the reason for your dismissal as a sufficient reason for dismissing you.
A Tribunal will also consider whether your employer has adopted a fair procedure in dismissing you and whether the ACAS statutory Code of Practice on discipline and grievance was followed. In most cases of dismissal, employers are obliged to follow certain steps under this ACAS Code of Practice. For example in a standard dismissal and disciplinary situation a minimum three-step procedure is required. Step 1 requires your employer to write to you setting out the reasons why they are considering dismissing you and invite you to a meeting; Step 2 requires the employer to hold a meeting to discuss your proposed disciplinary/dismissal, allowing you the right to be accompanied by a colleague or trade union representative. After the meeting the employer must inform you of the outcome and of your right of appeal. Step 3 requires the employee to appeal the decision, if he so wishes, informing his employer. The employer will invite you to an appeal meeting and an appeal meeting should take place.
What is constructive dismissal?
This is a label that is given to a resignation, which is treated as a dismissal for unfair dismissal purposes. In order to successfully claim constructive dismissal an employee needs to show that:
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The employer committed an extremely serious breach of contract.
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The employee resigned in response to that breach.
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The employee resigned promptly.
In order to bring a claim, the employee should also raise a formal grievance about the breach. This usually commences a three-step procedure similar to the statutory dismissal and disciplinary procedure outlined above. A meeting should be held, a decision made, and the employee has the right to appeal that decision.
Is it fair to dismiss an employee after their first offence?
This depends entirely upon the circumstances. An employee may be fairly dismissed for a one-off event of gross misconduct. This is a fair reason for dismissal if it involves extremely serious breaches of contract. Examples of offences that may constitute gross misconduct include violence, theft and fraud. An employee does not necessarily need to be guilty of the offence, but the employer needs to honestly believe that the employee is guilty of the offence.
What are the fair reasons for dismissal?
There are five fair reasons for dismissal: