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Legal
Basics
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Employment
Last modified:
24 July 2007
Unfair Dismissal Guidance
Here are some guidance notes to help you through the LAW on the WEB Unfair Dismissal flowchart.
An employee is a person who works under a contract of employment for his/her employer, whether this is a written or oral contract. Such a contract will usually involve (amongst other things) the employer paying the employee regular wages; giving the employee specific tasks to do; and providing them with the necessary tools and equipment for their job. A person who is self-employed cannot claim for unfair dismissal. It is generally easy to establish whether you are an employee, but there are occasions when someone may consider themselves to be an employee (eg their employer deducts tax and National Insurance contributions from their salary), but an Employment Tribunal will decide that they are in fact self-employed.
If you think you can answer YES to this question you should proceed.
Have you been employed long enough?
If you were dismissed after 1 June 1999 you must have at least 1 year's continuous employment with your employer. Holiday, maternity leave or sick leave do not break the continuity of employment.
If you think you can answer YES to this question you should proceed.
Generally it is pretty clear whether or not you have been dismissed from your job, but there are occasions where an employee may chose to leave, but the Employment Tribunal will still accept that they have been dismissed. This is called a constructive dismissal. To establish that you have been constructively dismissed the employee needs to show that they left as a result of a "fundamental breach" of their contract by their employer - examples may be where an employer refuses to pay wages or asks an employee to do something which is illegal.
If you are on a fixed term contract and this expires, then this is a dismissal, unless the contract is for more than one year and, in the contract, the employee has agreed to forgo this right.
If you think you can answer YES to this question you should proceed.
Are you in an excluded category or out of time?
As well as being below retirement age you must normally work in the UK. The law does not apply to policemen, dock workers, share fishermen or domestic servants.
You must also bring your claim within 3 months of the date of your dismissal. This is an absolute time limit and applications outside the 3 month limit are rarely accepted. You must therefore submit your application to the Employment Tribunal within the time limit, even if you are still going through your company's complaints' procedure.
The 3 month limit starts the same day that your notice period ends, if you are given notice (whether you are required to work it or not). However if you are paid in lieu of notice, the 3 months starts from the date of the dismissal. If you are dismissed without notice the 3 months again runs from the date of the dismissal.
If you think you can answer NO to this question you should proceed.
If you have got this far then the penultimate question is "Was your dismissal for a fair reason?" If it was not then you may have a claim for unfair dismissal. It is for the employer to show that the reason for your dismissal was at least potentially fair.
The legislation lists a series of categories of reasons for dismissal which are either automatically unfair, or potentially fair. There are a few circumstances which are automatically fair.
Automatically Unfair -
a) dismissal which relates to trade unions - membership, taking part in activities, refusal to become a member.
b) unfair selection for redundancy - normally dismissal on the grounds of redundancy is potentially fair (see below). However it becomes automatically unfair if the employee was selected for redundancy for an inadmissible reason, or in breach of an agreed procedure such as "last in - first out".
c) dismissal of pregnant employee - it it is automatically unfair to dismiss a female employee because she is pregnant, or for any reason connected with her pregnancy, unless her pregnancy renders her incapable of doing her normal work and there is no other suitable work that can be offered to her.
If the dismissal is automatically unfair then you may have a potential claim for unfair dismissal. Consult your solicitor.
Potentially Fair -
a) capability or qualification - dismissal of an employee who is incapable of performing their job either through ill health or incompetence is potentially fair. As is dismissal if it transpires that the employee does not have the necessary qualifications for the job.
b) conduct - this includes quite an extensive range of circumstances including theft, fighting, bad time-keeping, taking drugs or being drunk at work, abusive behaviour, and accessing the internet for personal use.
c) breaking the law - any situation where continuing to employ the employee would be illegal.
d) redundancy - dismissal on the grounds of redundancy is potentially fair, provided the employer follows a fair procedure for selection.
e) "some other substantial reason" - almost any other reason you can think of - from not getting on with your colleagues, through "sound business reasons", to refusal to reorganise along with others. This is a "catch-all" provision which is frequently used by employers
If you think the dismissal is potentially fair you should proceed.
Did your employer use a fair procedure?
The procedural requirements will vary from case to case, but a model disciplinary code of conduct has been put forward by ACAS (link below), detailing procedures which ought to be followed. This is frequently referred to in Employment Tribunal procedures, but does not need to be slavishly followed by employers. In general employers need to thoroughly investigate a case and give the employee an opportunity to put their side of the situation before dismissing. Employees should also be entitled to appeal any decision. The importance of following a fair and reasonable procedure before dismissing is essential for employers.
If the employer has not followed a fair procedure then the dismissal will be unfair and you will have a potential claim for unfair dismissal. Consult your solicitor.
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