Employees who are dismissed may be able to make a claim to an employment tribunal alleging unfair dismissal.
An employee who has completed more than two years of continuous employment is protected from unfair dismissal.
In order for a dismissal to be fair the reason for the dismissal must be one of the potentially fair reasons which are:
- Reasons related to the capability or qualifications of the employee;
- Reasons related to the conduct of the employee;
- Where their continued employment would involve them or the employer contravening a duty or restriction imposed by law;
- Some other substantial reason.
In all cases the employer’s decision to dismiss must satisfy a test of fairness. If the employer has not followed a fair procedure the decision to dismiss will be unfair even if there is otherwise a good reason for the dismissal and the employer’s error is purely procedural.
Automatic Unfair Dismissal
Some dismissals are classed as automatically unfair. These are generally where the dismissal is for asserting a statutory right; for a reason which is to do with pregnancy or maternity leave or the other family-friendly rights, pay and working hours, including the National Minimum Wage, trade union membership, whistle-blowing, being a part-time or fixed-term employee, or for a health and safety-related reason.
Most automatically unfair reasons for dismissal do not require a qualifying period to make a claim for unfair dismissal so they count from day one of employment. Some, such as a dismissal related to a TUPE transfer or because of a spent criminal conviction, do require the employee to have completed two years of continuous employment to make an employment tribunal claim.
The effect of a reason being an automatic unfair dismissal is that if the employee establishes to the tribunal that they were dismissed for such a reason the employer cannot then establish that the dismissal was fair.
Bishopsgate Law employment lawyers provide independent legal advice about employment settlement agreements, and represent employees and employers at employment tribunals.