The principle
Employees have statutory protection against being unfairly or constructively dismissed. If an employer acts unreasonably so as to force an employee to resign, that employee may well have a case of constructive dismissal, however, the act of resignation must be the only possible action left having exhausted all others. Ultimatums such as 'resign or be dismissed' which result in resignation are an example of constructive dismissal. An actual dismissal or act to cause resignation must have taken place for a claim to be made.
Exclusions
With the exception of cases of automatic unfair dismissal an employee must have a minimum of one years continuous service; if there is less than one years service a claim for breach of contract is a possibility. There is no upper age limit as a result of the Age Discrimination Act and situations like retirement must be dealt with in he correct manner.
Potentially fair dismissals
There are five potentially fair reasons that an employee can be dismissed for. To just allocate a 'fair' reason to a dismissal is not enough to make it fair. All dismissals have to be able to stand up to the scrutiny of an employment tribunal hearing. A proper procedure must be in place to deal with dismissals to ensure that, before the dismissal takes place, the matter is correctly investigated, the employee is given a change to state their version, the disciplinary procedure is followed etc etc. These procedures are dealt with elsewhere in the site.
Capability or qualifications
An employee must have the skill, aptitude and physical and mental ability to perform their job correctly. Once identified that this is not the case the employee must be made aware of their shortcomings and that they are fully discussed with them, they must also be given time and any appropriate training to improve with full monitoring of the ongoing situation. Finally, if all else fails, the implementation of the warnings procedure. By following this route a potentially fair dismissal can take place. Dismissal may also take place as a result of ill health, this is covered by the Absenteeism fact sheet.
It is rare that an employee is dismissed for not having the relevant qualifications as this should have been checked during the interview, however, it is a different matter if the employee misleads the employer about their qualifications and they are essential for the performance for the job.
Conduct
There are two types of conduct each of which are dealt with in a different way. Gross misconduct is a situation that is so serious that it warrants summary dismissal, however, before the decision to dismiss is taken the employee must be given an opportunity to defend their position against the allegation, then, taking this information into account, the decision is taken to dismiss or not. Normal misconduct can include things like persistent poor timekeeping and absenteeism, bad attitude and carelessness. Misconduct must be dealt with via the disciplinary procedure and a decision to dismiss is the final stage of that procedure.
Redundancy
Redundancy is a very detailed area and is covered by the Redundancy fact sheet. Briefly - for a dismissal on the grounds of redundancy to be potentially fair there must be a situation where the job at that place of work has diminished considerably or ceased to exist, prior meaningful consultation with any relevant employee, a fair selection of the employees for redundancy, full consideration of any alternative work available and full consideration of any methods whereby redundancy may be avoided.
Statutory requirements
If, due to the continued employment of an individual, the employer will be breaking the law the employer has a case for fair dismissal. However, all effort must be made to find alternative employment within the business, e.g. a convicted drunk driver employed as a driver may be found alternative employment within the business that does not include driving.
Some other substantial reason
This is very much a 'catch-all' category for everything else. A common use of this is when an employer reorganises their business and as a necessary part of that restructuring is forced to impose contract changes on the employee. If the employee then refused to accept the changes their dismissal would be potentially fair.
Automatically unfair dismissals
Not only are all these reasons for dismissal automatically unfair, for which the employer has no defence, the employee does not have to have one years service and there are no age limits to make an unfair dismissal claim.
- Trade union membership and activity
- Official industrial action
- Pressure dismissals
- Assertion of a statutory right
- Pregnancy related
- Health and safety dismissals
- Shop workers and Sunday trading
- National minimum wage dismissals
- Public interest disclosure dismissals
- Working time cases
- Pension scheme trustees
- Trade union recognition
- Parental leave dismissals
- Time off for family emergencies dismissals
- Employee representatives
- Right to time off for study or training
- Working families tax credit cases
- Directly because of being a part-time worker
Tribunal decisions and awards
An employee has up to three months to bring their claim to an employment tribunal. Once the hearing has been held there are a number of decisions and awards that can be passed down should the claim have been successful. The employee has the choice of reinstatement, re-engagement or compensation.
Reinstatement effectively means that the employee was never dismissed and that they continue in their old job as if nothing happened, enjoying the same benefits and pay from the day that they were 'dismissed'. The employer can appeal against this decision.
A re-engagement order from the tribunal stipulates that the employer must offer a comparable job of a specific type and the salary to be paid to the employee. This decision can also be appealed against. If the employer refuses to comply with either of these orders the tribunal can make an additional award of up to 52 weeks wages.
Compensation takes the form of two different awards, a basic award, calculated in a similar manner to statutory redundancy pay, is given because the dismissal was found to be unfair. The second award is to compensate the dismissed employee for the loss of things like pay, future earnings, benefits, pension etc etc. This can total over £50,000. Compensation can be awarded by the choice of the employee or if the employer refuses to to re-engage or reinstate.
