Unfair Dismissal: Guide for Employees

What is Unfair Dismissal?

Unfair dismissal is the unilateral decision by the employer to end the employment relationship due to reasons other than those that employment law considers “fair”. In essence, unfair dismissals target an employee’s statutory (legal) right more than mere contractual entitlements.

As an employee, you are entitled to protection against arbitrary decisions from employers. You have the right to make unfair dismissal claims but only if you’ve been working for the same employer for two or more years prior to the dismissal. Otherwise, you can only file claims before a tribunal for dismissals that were done in breach of contract (what is called “wrongful dismissal”) or for reasons that are deemed “automatically unfair” (more on this later).

Furthermore, you’d have to hold the status of employee (under an employment contract) to have unfair dismissal protection.

You will not enjoy this protection if you are:

• A worker (including an agency worker)
• A self-employed person
• A police officer or member of the armed forces
• A dock worker
• A share fisherman
• A foreign government employee
• An overseas employee

What Are Considered Fair Reasons for Dismissal?

Overview

Employers can justify a dismissal but only on the following principal grounds:

1. You’re not able to do your job adequately.
2. You have a long-term illness.
3. Your role is considered redundant.
4. Gross misconduct.
5. The existence of a statutory restriction.
6. The impossibility to keep you employed.
7. Some other “substantial reason”.

Let’s go over these reasons one by one:

1. You’re Not Able to Do Your Job Adequately

It’s said that you’re unable to do your job properly if you lack the capability to undertake the work assigned to you or if you have been unable to keep up with updates and new technologies implemented in the workplace.

This issue can be brought up in your subsequent performance reviews, and your employer must unequivocally state what is expected from you and issue a warning that the quality of your work is diminishing. They’re also obliged to grant you time to improve and proper training if necessary so that you may get acquainted with the new system or working method.

In some instances, poor performance reviews can result from discrimination rather than a reasonable assessment of the work. In these cases, you always have recourse to discrimination claims.

For example, if you are pregnant and you’re evaluated under the same yield standards as your peers, there is a good chance that you’re discriminated against and you have a great chance to challenge a potential dismissal on supposed performance grounds.

Poor performance is not measured on the basis of one isolated failure. Instead, each instance of failure should signal a trend. Nevertheless, a separate failure could be deemed as a conduct issue rather than a performance one.

2. You Have a Long-Term Illness

Employers are not obliged to keep you employed if you suffer from a long-term illness. However, to move on with the dismissal, your employer should carry out a reasonable investigation of your condition and do everything in their power to offer you alternative positions that you’d be able to fill without additional health risks. If you’re not given those opportunities, you can ask for compensation on account of unfair dismissal.

What’s more, if your ill condition is deemed a disability, you can claim disability discrimination if that was the principal reason for your ousting.

Paraphrasing the provision contained in the Equality Act 2010, a disability is an impairment (physical and/or mental) that can affect your capacity to undertake normal routinary activities in the long-term (more than 12 months). In addition, the affectation must be substantial (meaning that you would take considerably more time to perform daily tasks such as brushing your teeth or dressing).

An employment tribunal will assess whether the condition is considered irreversible, your chances of recovering and whether it was acquired through the employer’s fault (compensation for personal injuries should be asked before a civil court).

Other considerations include your time in the company. If you worked for your employer for more than ten years, the judge may consider it reasonable for your employer to grant you sick leave for up to a year, yet unreasonable if you were only employed for two or three years.

3. Your Job is Considered Redundant

If your employer needs to reduce the size of their workforce (e.g., for risk of insolvency or technological advancements), they can decide to distribute the workflow and, in most scenarios, consider some roles redundant. In those cases, it’s safe to assume that the dismissal due to redundancy is “fair”, provided that a selection process was followed.

The following should not be included as selection criteria for redundancy:

• Political opinion
• Age
• Gender
• Race
• Religious belief
• Marital status
• Pregnancy
• Maternity, paternity, or parental leaves
• Performing jury service
• Whistleblowing
• Being a trustee of a company pension scheme
• Taking legal action for a health and safety issue or participating in health and safety activities
• Membership in a trade union and participation in trade union activities
• Participating in a legal industrial action lawfully

If any of the above is regarded as a criterion for making you redundant, you can file a claim for unfair dismissal, apart from a discrimination claim.

Even if you were selected rightly for redundancy, you can still demand:

• Statutory redundancy pay
• A notice period
• Time off to land a new job
• Switch to a different role
• A consultation meeting with your manager or employer

4. Gross Misconduct

Gross misconduct is one of the few reasons that could lawfully bar you from a notice period or a written warning and your employer could opt instead for summary dismissal. However, not all situations call for summary dismissal, especially if the employee can bring up mitigating factors that justify their behaviour.

Common examples of gross misconduct include:

• Breach of confidentiality
• Assault on a workmate or manager/employer
• A blatant act of insubordination
• Gross negligence in the exercise of your duties
• Actions that put other employees’ health and physical integrity in jeopardy
• Theft
• Poor attendance
• Sexual harassment
• Alcohol or drug abuse

Other examples of gross misconduct may be found in the company handbook and they may vary depending on the role.

You must also be mindful that, according to case law, summary dismissal may be warranted if you engage in several acts of misconduct that end up constituting a trend (cumulative effect). There is a fine line that employers must draw when assessing whether summary dismissal is called for or not, but it would be ultimately the judge who will determine if that decision was correct.

5. Statutory Restriction

In a nutshell, if the exercise of your role hinged upon the fulfilment of certain legal conditions (such as holding a driver’s licence) that are no longer met (your licence got suspended), your employer is not only entitled to dismiss you but they’re obliged to do so at the risk of infringing the law.

A ruling by the Employment Appeal Tribunal (London Borough of Hounslow v Klusova) explained that, in those cases, not even a disciplinary procedure ought to be followed unless the employee can prove that the cause of the dismissal had nothing to do with a statutory restriction.

6. Impossibility to Keep You Employed

In this instance, just as in the case of redundancy, there is no disciplinary matter to resolve as the reason for terminating the contract ensues from events that are beyond the employer’s control (such as the destruction of the workplace due to natural disasters, arson, etc.)

This is considered a fair reason since there is no fault on the part of the employer. However, if you feel that the reasons are not connected to the alleged event, you can always dispute that before an employment tribunal.

7. Some Other Substantial Reason (SOSR)

This reads like a scapegoat argument that employers have recourse to when there are no specific reasons to end the employment relationship. However, this is not a blank term by which employers could invoke frivolous or meaningless causes. Case law has made an effort in developing this idea conspicuously.

SOSR dismissals normally involve situations such as:

• Personality clashes with other employees that make it impossible for the troublemaker to keep working in the company. Employers should justify how this friction with other teammates became a major business concern.
• A conflict of interest that could potentially thwart the company’s goals (e.g., the employee has a close relative working for a competing business.)
• A change in terms and conditions that the employee vehemently refuses to accept without giving a reasonable excuse. Employers must show evidence that the changes were made for “sound business reasons” and not out of arbitrariness.
• Patterns of behaviour that the employer might find risky for the business’s reputation in an industry that demands a very steep level of safeguarding and an unblemished record (e.g., school teachers caught displaying erratic behaviour towards children or downloading inappropriate material).
• Refusal from a major client to keep working with the company unless the employee is ousted. This problem frequently arises with companies that send their employees to work in their client’s locations, such as security or maintenance companies.

In all of the above examples, the burden of proof is on the employer to show that the grounds for dismissal were substantial enough that any delay in dismissing the employee would harm the business notably.

What Is an Automatically Unfair Dismissal?

An “automatically unfair” or automatic unfair dismissal is one that is so fundamentally unfair that it doesn’t even require you to satisfy the two-year continuous employment prerequisite.

These dismissals tend to infringe on basic employee’s statutory employment rights, mainly dealing with equality and non-discrimination. This is so even if the employer managed to follow a “fair” procedure. For the purposes of the employment tribunal, you only need to prove that you were automatically unfairly dismissed to compel the employer to award damages and even reinstate you.

Automatically unfair dismissals are easier to prove than ordinary unfair dismissals. When you claim unfair dismissal, the judge may occasionally transfer the burden of proof if the employer made a good case. Not so much when there was a proven automatically unfair reason because the real reason behind the dismissal could not be concealed behind “reasonable” arguments from the other side.

Some examples of reasons that could be categorised as automatically unfair include (but are not reduced to): Pregnancy and everything related to maternity, leaves for family reasons, joining a trade union, being under a part-time or fixed-term contract, trying to affirm a statutory right (such as an itemised pay statement or flexible working), and/or undertaking jury service, among others. All reasons linked to the protected characteristics alluded to in the Equality Act 2010 (some of which were already hinted at) are automatically unfair as well.

Unfair Dismissal Vs. Constructive Dismissal

Unfair dismissal and constructive dismissal are concepts that are heavily related to one another but don’t refer to the same action.

Unfair dismissal is characterised by the issuance of a dismissal letter by the employer on unfair grounds. Meanwhile, constructive dismissal does not require the employer to expressly dismiss the employee. Instead, the employer prompts the employee to forcefully resign due to a serious breach of contract that harms the employee’s trust.

Unfair Dismissal Vs. Wrongful Dismissal

Wrongful dismissal is frequently confused with unfair dismissal, but it refers to a whole different type of situation that’s more connected to a breach of a contractual term.

A typical example of wrongful dismissal is the inobservance of the employee’s right to a contractual notice period or the employer’s failure to heed the contract’s fixed term. All of these could be rightfully construed as wrongful dismissals even if the employee hasn’t met the two-year employment requirement yet.

An unfair dismissal, as indicated in a previous section, is done in violation of a legal right, even if it was not recognised explicitly in the contract of employment.

Fair Procedure

Apart from unfair dismissal protection, as an employee, you hold the right to a statutory minimum dismissal procedure, as well as a first and final written warning (with some very special exceptions). This means that the employer must summon you so that you may provide arguments in your defence and bring your evidence (including witnesses), as well as representatives to aid you during the meetings.

The employer is obliged to examine the facts from all angles and come to an impartial conclusion following the Acas Code of Practice for Disciplinary and Grievance Procedures or, if available, the procedure contained in the company’s staff handbook or employment contracts.

What’s an Unfair Dismissal Claim?

An unfair dismissal claim is a petition submitted to an employment tribunal so that they may evaluate the case and decide accordingly. The employment tribunal will receive your claim form and, if admitted, will send a copy of the form to the employer (the respondent), who would have to draft a thorough response within the next 28 days from the date of receipt.

The judge will then decide whether to convene a meeting – so that the parties may clarify their positions – or issue a verdict. In the course of the judicial process, the parties may arrange a settlement agreement or go through a conciliatory process.

Before making a claim against your employer, you must notify Acas (Advisory, Conciliation, and Arbitration Service), who will then offer an early conciliation.

How We Can Help You

Our firm has been largely dedicated to defending both employers and employees in a variety of disputes. For this reason, we’re more than prepared not only to give timely advice on how to move forward in a dismissal controversy but also to offer a clearer view of how these proceedings work from a broader vantage point. That way, you can benefit from a more level-headed and convincing defence strategy.

If you have already fallen victim to unfair dismissal or fear that you may be deprived of your employment unfairly in the near future, entrust your defence to a competent legal team that will undoubtedly support you from the moment you receive your first warning sign.

Call us at +44 (0)333 414 9244 to learn more about the services we offer.