Who Can Claim for Unfair Dismissal?

Partner Sue Dowling, in our Employment Law team discusses dismissal situations that are objectionable.

It is a question we are often asked by clients – therefore, this blog aims to outline the main ‘conditions’ that will need to be satisfied, and also considered, when faced with a dismissal situation that is objectionable. 

Employees only
Generally speaking, protection from an unfair dismissal is only available to employees, i.e. it is not open to “workers” or the genuinely self-employed.  There are potential alternative claims for workers and the genuinely self-employed but these are beyond the scope of this blog.

Required service
To qualify for unfair dismissal rights, in most cases an employee needs to have two years’ continuous service with their employer on the effective date of dismissal (broadly speaking, the date on which any period of notice expires or the date the termination takes effect).

There are some instances where an employee does not need the minimum qualifying period of service and most commonly this is when the dismissal is deemed “automatically unfair”. These include dismissals for reasons connected to pregnancy or maternity leave, health and safety activities, whistleblowing, exercising various time off rights etc. However, discrimination claims (including claims that a dismissal was for a discriminatory reason) do not require any qualifying period of service.  

Have you been “dismissed”?

For the purposes of an unfair dismissal claim, you will have been “dismissed” if:

• Your employment is terminated by your employer;
• You were employed for a fixed period, the period has expired and your contract has not been renewed; or
• Because of the employer’s conduct, you were entitled to resign and terminate your employment without notice (i.e. constructive dismissal).

When is a dismissal unfair?

If a claim is brought to an employment tribunal for alleged unfair dismissal, the question asked is not actually whether the dismissal was unfair but rather, was the dismissal fair? 

Once the employee has established they were “dismissed” the employer then needs to show the reason for the dismissal fell within one of five potentially fair reasons for dismissal.

The tribunal then decides whether in all of the circumstances the employer acted reasonably in treating that reason as a sufficient reason for dismissal.

The five potentially fair reasons for dismissal

The five potentially fair reasons for dismissal are:

1. Capability– it relates to the employee’s abilities or qualifications for performing the job they were employed to do.  Commonly, this category includes dismissals based on repeated poor performance or in certain circumstances, long term ill-health;
2. Conduct – relates to the employee’s conduct and is either one act of serious misconduct or a series of less serious acts of misconduct.  This often includes disobeying reasonable instructions, poor time keeping/attendance, violence at work, breach of trust and confidence etc.;
3. Redundancy – this includes when the employee is redundant because the company has ceased to carry on the business they are employed to do, they have closed the workplace the employee worked in or they have a reduced need for the type of work the employee was employed to do;
4. Statutory restriction – continuing to employ the employee would be in breach of a law;
5. Some other substantial reason – the dismissal is for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held, in other words for a potentially fair reason which does not fall in the above categories.

How does the Employment Tribunal decide a dismissal was reasonable?

Primarily the tribunal will consider two aspects of the dismissal:

1. Did the employer follow a fair procedure?
2. Did the employer act reasonably in treating the reason as a sufficient reason?

The tribunal does not decide whether they would have dismissed the employee under the circumstances, rather they decide whether a reasonable employer in the same circumstances and business might have made the same decision and would have followed the same procedure.   Further, they will only take into account facts known to the person who made the decision to dismiss.

Bringing a claim

A claim for unfair dismissal must generally be presented to the employment tribunal within a period of three months starting with the effective date of dismissal (although this period is extended during any period of early conciliation with ACAS).

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.