Unfair Dismissal
Introduction
Where an employer dismisses an employee without good reason, the employee can potentially raise an Employment Tribunal claim for either wrongful or unfair dismissal. Wrongful dismissal can arise where a dismissal is in breach of contract, for example, where an employee is dismissed without notice in circumstances which does not justify summary dismissal. In contrast, unfair dismissal is a purely statutory creation.
In order to raise a claim for unfair dismissal, the employee will require to satisfy a Tribunal that:-
- they were an employee, whether part time or full time
- they had the necessary continuity of service (normally two years' continuous service although employees employed prior to 6 April 2012 only need to have one year's service) to bring a claim for unfair dismissal, and
- they were dismissed.
However, there are certain circumstances where employees with less than two years' service (or less than one year's service in the circumstances set out above) can bring an Employment Tribunal claim for unfair dismissal. Examples of this include dismissal for health and safety reasons, as a result of whistle blowing, or on the grounds of race, sex, disability, sexual orientation or religious belief. If there is any uncertainty in relation to whether you have the necessary service to bring a claim it is advisable to seek advice from an employment solicitor.
Potentially Fair Dismissals
There are currently five situations where a dismissal will potentially be fair. These are where the dismissal is for:-
- capability;
- conduct;
- redundancy;
- contravention of a statutory enactment;
- some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
Once an employer has shown that the reason for dismissal falls within one of the above categories the Tribunal will then look to see whether in all the circumstances and having regard to the size and administrative resources of the employer, the employer acted reasonably.
Automatically Unfair Dismissals
There are certain circumstances where a dismissal will be automatically unfair. In such cases the employee requires to establish only that the reason for the dismissal was one of the automatically unfair reasons. The question of reasonableness does not factor. These include dismissals:-
- related to membership of Trade Union
- due to participation in activities of trade union
- by reason of pregnancy
- for health and safety reasons
- due to a transfer of an undertaking
- due to employee attempting to enforce a statutory right
- due to whistle-blowing
This list is not exhaustive. If an employer anticipates that a dismissal may be interpreted by an employee as falling within one of the reasons for automatically unfair dismissal then it is advisable to obtain employment law advice in order to identify the risk of a Tribunal viewing the dismissal in this way.
Constructive Dismissal
Another situation where an employee can claim unfair dismissal is where they resign and claim constructive dismissal. This claim may arise where the employee terminates his contract of employment, with or without notice, in circumstances where he is entitled to terminate by reason of the employer’s conduct. One example of such conduct that may amount to constructive dismissal is where the employer has failed to pay the employee’s salary. However, it is not enough for the employee to show that the employer’s conduct has been unreasonable in some way. The employer must have broken a significant term of the contract and then the employee would have to show that the breaking of the contract was what caused him to leave. Employee’s should exercise caution in resigning from their employment and claiming constructive dismissal given the high test to be satisfied in order to succeed at Tribunal. If an employee is in any doubt as to whether the employer’s conduct amounts to a significantly serious breach of contract to allow them to resign and seek constructive dismissal then it is recommended that they contact an employment lawyer for advice in order to minimise the risk of resigning and then finding that they are both without employment and unable to pursue an Employment Tribunal claim.
Dismissal Procedures
The ACAS Discipline and Grievance Code of Practice applies. For more information please see Acas Code Of Practice On Disciplinary & Grievance Procedures.
Claims and Awards
A claim should be made to an Employment Tribunal within 3 months of the date of dismissal (3 months less one day).
In the event that a Tribunal finds the dismissal to be unfair they can make the following orders:-
- reinstatement
- re-engagement
- compensation
Although Employment Tribunals have the power to order reinstatement and re-engagement this power is seldom used. The basic award is calculated in the same way as a redundancy payment and is related to age and length of service. The maximum basic award is £12,900. The maximum unfair dismissal compensatory award is currently £72,300, however in certain limited circumstances, such as in whistleblowing cases, the cap does not apply. Where an employer unreasonably fails to comply with the ACAS Discipline and Grievance Code of Practice the Tribunal may increase any award by up to 25% subject always to the cap of £72,300.
Further information is also available from ACAS (www.acas.org.uk/) and BIS (http://www.bis.gov.uk/)
For more information please contact our experienced employment law solicitors in Edinburgh, Glasgow and London.
Please also see our factsheet with Frequently Asked Questions on Unfair Dismissal: Unfair Dismissal - FAQ.
Contact Us
You can contact the employment law team in Edinburgh, Glasgow or London. For an initial informal discussion contact Innes Clark:
T: 0131 247 1181
E: innes.clark@morton-fraser.com
