Unfair & Wrongful Dismissal

Unfair dismissal is a dismissal which contravenes the Employment Rights Act. In order to be able bring a claim for unfair dismissal an employee must therefore have at least two years' continuous employment (including notice period) with his or her employer. Wrongful dismissal is where an employee is dismissed in breach of his or her contractual terms.

Unfair dismissal

Dismissal is automatically considered to be unfair if it results from one of the following:  

• An employee refusing to work in situations which might lead to serious danger;
• An employee bringing proceedings against the employer;
• Sex, race or disability discrimination;
• An employee seeking to obtain any rights to which he or she is entitled to by law;
• An employee taking part in lawful industrial action;
• An employee asserting his or her rights to parental leave, maternity leave and/or paternity leave;
• An employee trying to obtain part-time workers rights;
• A shop worker refusing to work on a Sunday;
• An employee's membership of a trade union.

Dismissal can be considered fair if it arises from:  

• A lack of capability or of qualifications;
• Misconduct;
• The employee breaking the law;
• Redundancy (provided the selection process was fair).
• Some other substantial reason.

Employers must take care that what should by rights be a fair dismissal is not made effectively unfair. This can happen if the employer is thought to have either judged the employee unfairly or acted unreasonably.

The following are taken into consideration in a tribunal as to whether a dismissal has been fair:

• Had the employer followed the statutory procedures required by the Employment Act 2002 (Dispute Resolution) Regulations 2004? (Failure to follow these procedures will make most dismissals automatically unfair.
• In the case of misconduct, did the employer have reasonable grounds for believing that the employee carried out the act concerned?  If so, have these grounds been subjected to a reasonable investigation?
• Had the employer adhered to the Company's policy on dismissal?
• Did the employee know the grounds for the dismissal and have a chance to answer any complaints?
• Did the employee have the right to be accompanied at the disciplinary hearing?
• Was there was something the employee could of done to rectify the problem (i.e. in a case of underperformance) and did the employer give them a chance to rectify the problem?

In tribunal cases, the employee's length of service will also be taken into consideration as well as the size of the employer.

The maximum compensation award for unfair dismissal is currently £118,223.00. The maximum basic award is currently £21,570.00.

Automatically fair reasons for dismissal

The following are automatically considered to be fair reasons to dismiss an employee:

• Safeguarding national security;
• An employee taking part in an unofficial strike or other unofficial action (although this does not apply in all cases);
• In circumstances where an employee has taken part in an unofficial strike and all similar employees have been a) dismissed and b) not re-employed within 3 months of their dismissal.

Wrongful dismissal

An employee can claim wrongful dismissal if he or she has been dismissed in breach of his or her contract of employment. An example of wrongful dismissal could be where an employer has dismissed an employee without observing the employee's contractual notice entitlement. The remedy in such cases is an award equivalent to the contractual entitlement the employee would have received if his or her contract had not been breached.

Constructive dismissal

Constructive dismissal occurs where an employee is forced to resign because circumstances within the work place make him or her feel unable to perform his or her job. An example could be where the employee is subjected to ongoing harassment and bullying. The provisions of the Employment Act 2002, which came into force in April 2003, require employees to air grievances in writing. This should reduce the possibility of employers being unaware of situations in the workplace that may give rise to complaints of constructive dismissal.