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.
Dismissal is automatically considered to be unfair if it results from one of the following:
Dismissal can be considered fair if it arises from:
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:
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 £105,707.00. The maximum basic award is currently £19,290.00.
The following are automatically considered to be fair reasons to dismiss an employee:
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 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.