The cutthroat world of unfair dismissals

In English Law there is no right to protection from unfair dismissal in common law. As long as the employer gives the employee appropriate notice, or their reason for dismissal is so severe as to allow him to treat the employment contract as breached and dismiss the employee without notice, he will have acted fairly. However, parliament has passed legislation which creates the concept of unfair dismissal and outlaws this practice.

In determining whether an employee has been unfairly dismissed, it is necessary to follow a three stage test. The first stage of the test is to ascertain whether the employee was dismissed for a reason which was “potentially fair”, whilst the second stage of the test is to divine whether a fair and rational procedure was followed. Finally, the employee will need to consider whether the dismissal was fair and reasonable in the circumstances.

If the dismissal was for a potentially fair reason, the correct procedure was followed and the decision to dismiss was reasonable in the circumstances, this will not be unfair dismissal.

However, protection from unfair dismissal is not something which is afforded to any worker who just walks off of the street and into a job. The legislation which protects employees from unfair dismissal limits its scope to persons who have been continuously employed by the same employer for one year or more. This is a concession to employers who have need to observe a person at work before they are able to make a decision as to whether or not he is truly suited to the role, and allows employers to impose probationary periods during which an employee may be dismissed for any reason.

Potentially fair and automatically unfair reasons for dismissal

There are a number of reasons for dismissal which are considered automatically unfair. These include:

• the involvement or not involvement of the employee in trade union activities
• the exercise by the employee of any statutory employment right or contractual right (for example, the insistence of the employee on receiving the national minimum wage, or refusal to work more than 48 hours per week or opt out of the European Working Time directive.
• the pregnancy or maternity of the employee
• the race, religion, gender, marital status or sexual orientation of the employee

A dismissal will be unfair if one of the above was the employer’s true motivation in dismissing the employee, regardless of whether any other reasons existed. In the absence of an automatically unfair reason for dismissal, the dismissal is deemed to be “potentially fair”. Potentially fair reasons for dismissal include:

• A reason connected with the employees conduct
• A reason connected with the employees qualifications, competence or ability to do the job
• A genuine change in business requirements (although this may be a redundancy situation)

The fair procedure

If the company has a disciplinary procedure then this must be followed. If there is no disciplinary procedure then the standard process laid down by statute should be observed. This usually requires the employer to make the employee aware of the nature of the complaint well in advance, and to give him an opportunity to answer the allegations against him. There should be an impartial and objective disciplinary hearing, and if necessary an appeal. If a fair procedure is not followed then the dismissal will be unfair.

Is dismissal fair and reasonable?

Even if there is a potentially fair reason for dismissal and the correct disciplinary procedure is followed, the dismissal will be unfair unless the employer can demonstrate that it was reasonable in the circumstances. For example it would not be reasonable to dismiss someone for their first minor misbehaviour if their previous record is unblemished.