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Unfair dismissal - overview
The right not to be unfairly dismissed is a purely statutory right arising under the ERA 1996, s 94.
The ERA 1996, Part X contains most of the provisions relating to who has the right, how to bring a claim, when the right is infringed and the remedies available following a successful claim.
Claims for unfair dismissal may only be brought in an employment tribunal and must generally be presented within three months of the effective date of termination of employment.
For more information, see Unfair dismissal time limit.
Who can claim
The right is generally subject to a number of qualifying conditions and exceptions, including that the claimant:
must be an employee
must have been dismissed
There are specific provisions setting out which categories of employee and employment situation have the right not to be unfairly dismissed.
For further details, see Entitlement to claim unfair dismissal.
For employees starting fresh employment on or after 6 April 2012, the right not to be unfairly dismissed generally only arises when the employee has been continuously employed for a period of at least two years.
Employees whose current period of continuous employment commenced before 6 April 2012 will:
retain their unfair dismissal rights if they have already been continuously employed for one year or more as at 6 April 2012 (even if they have been employed for less than two years), or
gain unfair dismissal rights after being continuously employed for one year
However, there are many exceptions to the qualifying period requirement, mostly relating to situations in which the employee is automatically unfairly dismissed for one of a number of impermissible reasons.
For more information, see Qualifying period for unfair dismissal and Checklist - unfair dismissal claims which require no minimum qualifying period.
Definition of dismissal
To succeed in a claim of unfair dismissal, the claimant has to establish that he was dismissed by the employer. The circumstances in which an employee is treated as having been dismissed for the purposes of an unfair dismissal claim are limited to:
termination of the employee's contract by the employer
notice to terminate the contract given by the employer, followed by counter-notice given by the employee that expires before the end of the original notice period
termination of a limited-term contract on the happening of the limiting event
resignation by the employee, where he is entitled to do so by reason of the employer's conduct (constructive dismissal)
Dismissal does not include:
termination by mutual consent
genuine voluntary resignation
termination by frustration
For more information, see Definition of dismissal in unfair dismissal.
Effective date of termination
Where a qualifying period of employment is required to bring an unfair dismissal claim, the claimant's period of continuous employment is calculated up to and including the 'effective date of termination'.
The effective date of termination is the date when:
notice expires where the contract is terminated (by employer or employee) on notice
termination takes effect where the contract is terminated without notice (ie on summary dismissal)
termination takes effect on the happening of a limiting event with limited-term contracts
For more information, see Effective date of termination.
Reason for dismissal
Once an employee has established that he has the right not to be unfairly dismissed and that he has been dismissed, a tribunal will generally look to the employer to show that the reason or principal reason for dismissal was one of a list of potentially fair reasons.
Potentially fair reasons for dismissal include:
retirement (repealed, subject to transitional provisions, with effect from 6 April 2011 - see Age discrimination: retirement and dismissal - Phasing out of the default retirement age: transitional provisions)
breach of statute
some other substantial reason
If the employer does establish a potentially fair reason for dismissal, the tribunal will consider whether the dismissal was fair or unfair having regard to all of the circumstances of the case, including the size and administrative resources of the respondent employer. In doing so, the employment tribunal should not substitute its own view for that of the employer but it should instead decide whether the employer's actions fell within the range of reasonable responses of a reasonable employer.
Dismissal will be automatically unfair if the employee is able to show that the reason or principal reason for dismissal was one of a list of special reasons, including pregnancy, reasons relating to health and safety and whistleblowing. Most of those reasons will also render the dismissal unfair where the reason for dismissal is redundancy, but the employee was selected for redundancy on the basis of an impermissible reason.
For more information, see Reason for dismissal - general, Reason for dismissal - capability, Reason for dismissal - conduct, Reason for dismissal - redundancy, Reason for dismissal - retirement, Reason for dismissal - breach of enactment, and Reason for dismissal - some other substantial reason.
Even where an employer has established that the reason for dismissal is potentially fair, the dismissal may be found to have been unfair where the employer has failed to follow a fair procedure. Employers must follow the Acas Code of Practice on Disciplinary and Grievance procedures (see Acas disciplinary and grievance code - procedural requirements).
The statutory dismissal and disciplinary procedure was repealed with effect from 6 April 2009, subject to transitional provisions (see Dispute resolution procedures - transitional provisions). Where they still apply, the employer and employee may be required to follow one of the statutory dismissal and disciplinary procedures in respect of most dismissals (see Application and requirements of the dismissal and disciplinary procedures).
Where the statutory dismissal and disciplinary procedures still apply, an employee's dismissal will be treated as automatically unfair where:
one of the statutory dismissal and disciplinary procedures applies in relation to the dismissal (either the standard or modified procedure)
the procedure has not been completed, and
the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements
For further discussion, see Procedural fairness.
Automatically unfair reasons
The ERA 1996 and certain other legislation specify various reasons for dismissal that make it automatically unfair. It is for the employee to allege that his dismissal was for one of those reasons. Where the employee does allege this, the question of who has the burden of proving the real reason for dismissal will depend upon whether or not the employee has sufficient length of service to claim ordinary (non-automatic) unfair dismissal.
Where the tribunal does conclude that the reason or principal reason for the dismissal was one of those specified as making a dismissal automatically unfair:
there will be no need for further consideration of the issue of fairness
the statutory limit on compensation for unfair dismissal does not apply
Automatically unfair reasons for dismissal are many and varied, and include dismissal for one of a number of specified family-related reasons such as giving birth or taking maternity leave, whistleblowing, and trade union membership or activities.
For more information, see Automatically unfair reasons.
Where an employment tribunal has found that an employee has been unfairly dismissed, it will consider what remedy should be ordered.
The available orders are:
an order for reinstatement - ordering the employer to give the employee his old job back and to make good any loss of earnings from date of dismissal to date of reinstatement: see Reinstatement
an order for re-engagement - ordering the employer to give the employee a job comparable to his old job and to make good any loss of earnings from date of dismissal to date of re-engagement: see Re-engagement
an order for compensation: seeCompensation in unfair dismissal - general
Orders for reinstatement or re-engagement are rarely asked for and are even more rarely made.
An order for compensation usually includes:
a 'basic award' - an award to reflect the fact that the employee has been unfairly dismissed. It is calculated in much the same way as a statutory redundancy payment and depends on the gross weekly pay of the employee, his length of continuous employment before dismissal and his age. In some types of case, the basic award is set at a particular level or at a particular minimum level. The basic award may also be subject to a number of deductions. See The basic award
a 'compensatory award' - to compensate the employee for financial losses suffered as a result of the unfair dismissal. It may be subject to a number of deductions and/or increases. See The unfair dismissal compensatory award
For further discussion, see Unfair dismissal remedies - general.
In certain circumstances, an interim remedy is available to an employee claiming unfair dismissal before the final hearing of his claim and before any finding of unfair dismissal has been made. Interim relief is only available where an employee has brought a claim for unfair dismissal and alleges that his dismissal was for one of a number of specified automatically unfair reasons.
There are strict time limits for any application for interim relief and it will only succeed if the tribunal is satisfied that it is likely at the final hearing of the claim that the tribunal will find that the reason for dismissal was as alleged by the employee.
If successful, interim relief may be in the form of an order that the employee be reinstated or re-engaged or that his contract of employment should continue, in each case pending the final outcome of his unfair dismissal claim.
For more information, see Interim relief in unfair dismissal.
It is open to the parties to an unfair dismissal claim, as with any other claim, to settle the claim privately or through the assistance of Acas. The parties may choose to settle their differences before the claim is commenced or even before dismissal takes effect. However, to be effective in compromising a claim or potential claim for unfair dismissal, the settlement must comply with one of a number of statutory provisions. Generally, the settlement must either be achieved through Acas conciliation or be set out in a valid compromise agreement.
For more information, see Settlement of unfair dismissal claims.
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