When considering whether it should dismiss an employee an employer should always have regard to the potential for liability for unfair dismissal, but what does that really mean? The purpose of this article is to summarise the key principles.
What is an unfair dismissal?
In principle, subject to the exceptions mentioned below, under s98 Employment rights Act 1996 every employee has the statutory right not to be unfairly dismissed.
A dismissal will be unfair unless both of the following conditions are satisfied:
- There is a potentially fair reason for the employer to dismiss (the question of what constitutes a fair reason will be the subject of a later article, but there is a limited number of potentially fair reasons and the employer’s reason must fall within one of these).
- The employer has acted reasonably in treating the reason as sufficient to dismiss the employee in all the circumstances of the case. The nature of this requirement will vary depending upon the reason for the dismissal.
Who is entitled to claim unfair dismissal?
If an individual wants to bring a claim of unfair dismissal, they have to fulfil certain criteria. These are:-
- The individual must be an employee.
- In most circumstances, the individual must have been continuously employed by the employer for two years. However, this requirement is subject to some important exceptions, where the dismissal is deemed ‘automatically unfair.’ (see below).
- The employee must have been dismissed (see previous article on what amounts to a dismissal)
- The employee must bring the claim within a period of three months starting with the “effective date of termination”.
- The parties must engage in ACAS early conciliation, which will ‘stop the clock’ running for the purposes of the three month time limit. Time stops from the point at which the claimant contacts ACAS, and starts again when the conciliation concludes and the claimant is permitted to proceed with the claim.
When is a dismissal automatically unfair?
In some cases a dismissal will be considered to be automatically unfair, regardless of any other considerations. The most common cases in which a dismissal will be automatically unfair are where it is carried out for a reason connected to:-
- trade union membership (or non-membership) or activities or taking industrial action (in the first 12 weeks);
- family reasons (maternity, pregnancy, paternity, adoption & dependant leave etc);
- health and safety;
- an employee’s duties as an employee representative;
- asserting a statutory right, such as asking for time off for antenatal care;
- the making of a protected disclosure (“whistle-blowing”)
- refusing to work on a Sunday;
- the Information and Consultation Regulations 2004;
- the part-time and/or fixed term work regulations;
- spent convictions;
- the national minimum wage;
- the working time regulations.
The list above is not exhaustive.
Employees are protected from these kinds of dismissals as soon as they commence their employment. This means that they do not need the usual two years’ service to be able to bring a claim.
Who may not complain of unfair dismissal?
There are a number of people who may not complain of unfair dismissal:
- anyone who is not an employee (this will be the subject of a further article, but for now why not simply pick up the phone and ask us?)
- share fishermen
- police officers
- those employed in the security services
- employees who do not meet the qualifying period of continuous service unless it is a claim for automatic unfair dismissal
- employees who work outside Great Britain (unless they can claim a right derived under EU law)
- employees who voluntarily resign or vacate their post by mutual agreement with their employer (unless they claim constructive dismissal)
- anyone who worked under an illegal contract
- those who have signed a valid agreement restricting their right to bring the claim
- employees who have had the claim disposed of by an Employment Tribunal
- employees who worked for an employer that is entitled to protection by diplomatic or state immunity
- employees who have successfully appealed against their dismissal.
You will have gathered from this that the topic of unfair dismissal has many facets and it is all-too-easy for employers to fall into one of the many ‘traps’ that exist. If you require advice on these issues please do make contact with a member of Jacksons Employment Law team.
Mark Foster, Partner & Head of Employment
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