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DISMISSAL - FAIR AND UNFAIR : A GUIDE FOR EMPLOYERS (PL714
Rev 13 - URN 05/1912)
What is
unfair dismissal?
What
is dismissal?
It is usually
quite evident to both employee and employer when an employee has
been dismissed, but it should be borne in mind that a dismissal
will also take place:
- when
the employee's limited-term contract expires but is not renewed
(but see Those who may not complain
of unfair dismissal). A limited-term contract is a
contract for a fixed term or the performance of a specific
task, or one which ends when a specified event does or does
not occur;
- when an
employee has reason to resign because of certain conduct of
the employer - known as 'constructive dismissal' (see Constructive
dismissal).
When
is a dismissal fair or unfair?
The law on
unfair dismissal does no more than give employees a legal right
to be treated in the way in which a fair and reasonable employer
would treat them anyway. For an employer to dismiss an employee
fairly, he or she must both:
The second
of these conditions does not apply in cases where the dismissal
is automatically unfair (see below).
What
may be a valid reason for dismissal?
Legislation
lists five specific types of reason which can justify dismissal.
They are as follows:
Conduct
This is by far the most common reason for dismissal and the one
which leads to the largest number of complaints of unfair dismissal.
For this reason this guide is chiefly concerned with dismissal
for disciplinary reasons. On the specific question of criminal
offences see Dismissal in connection
with criminal offences.
Capability
The employee is unable satisfactorily to do or does not have the
qualifications for the job. The question of the employee who becomes
unable to do his or her job because of illness is discussed further
below (see Dismissal in connection
with illness).
Redundancy
In general, an employee can have no grounds for claiming unfair
dismissal if the dismissal was because of redundancy, that is
because the employer had no work or insufficient work for the
employee to do. There are, however, some circumstances in which
it is unfair to make an employee redundant (see Dismissal
on grounds of redundancy).
A statutory
requirement
This may prevent the employment continuing, for example where
a chauffeur has lost his driving licence and there is no other
suitable job available.
Some other
substantial reason
Experience has shown that the above reasons are likely to cover
almost every case where dismissal is necessary. Situations may
arise, however, where an employer has a good reason for dismissing
an employee which is not one of those listed above. An example
would be the dismissal of an employee who was taken on as a temporary
replacement for a worker who was returning after being suspended
for medical reasons (provided, of course, that it had been clearly
explained to the employee concerned that the job was only temporary).
For such a reason as this, described in legislation as 'some other
substantial reason', the dismissal may also be fair.
When is dismissal automatically unfair?
The dismissal of an employee will be held to be unfair if it
is for one of the following reasons:
-
trade
union membership, trade union non-membership, trade union
activities or proposed activities, or use or proposed use of trade
union services;
-
failure to accept an unlawful inducement by an employer to
relinquish trade union rights or to
disapply
collective agreements;
-
failure
to accept an offer made by an employer to induce the employee to
be a trade union member;
-
refusing
to make a payment in lieu of union membership, or objecting to
their employer deducting a sum from their wages or salary to make
such a payment. (See also
Interim relief);
- because
the employee was dismissed or selected for redundancy on maternity
related grounds (see Dismissal
on the grounds of pregnancy or maternity);
- because
the employee was dismissed or selected for redundancy for
taking or seeking to take paternity leave (see Dismissal
related to paternity leave);
- because
the employee was dismissed or selected for redundancy for
taking or seeking to take adoption leave (see Dismissal
related to adoption leave);
- because
the employee was dismissed or selected for redundancy for
requesting flexible working arrangements (see Dismissal
relating to the right to request flexible working arrangements);
- because
the employee was dismissed or selected for redundancy for having
sought, in good faith, to assert a statutory employment protection
right (see Dismissal for asserting
a statutory right);
- because
the employee was dismissed or selected for redundancy for taking
or proposing to take certain specified types of action on health
and safety grounds (see Dismissal
for taking action on health and safety grounds);
- because
the employee was dismissed on the transfer of an undertaking
or part of an undertaking, and the transfer itself, or a reason
connected with it, is the main reason for the dismissal, unless
it can be established that the dismissal was for an economic,
technical or organisational reason entailing changes in the
work force (see Dismissal on the
transfer of an undertaking);
- because,
subject to certain conditions, the employee was a shop worker
or a betting worker and was dismissed or selected for redundancy
for refusing to work on Sundays; or he or she was dismissed
or selected for redundancy for giving, or proposing to give,
an "opting out" notice to his or her employer; (see
Sunday shop and betting work: employees
rights (PL960));
- because
the employee was dismissed or selected for redundancy for performing,
or proposing to perform, any duties relevant to his or her role
as an employee representative or as a candidate to be a representative
of this kind or as a participant in the election of such a representative
(see Dismissal relating to activities
as an employee representative);
- because
the employee was dismissed or selected for redundancy for performing,
or proposing to perform, any duties relevant to his or her role
as an employee occupational pension scheme trustee (see Dismissal
relating to activities as an occupational pension scheme trustee);
- because
the employee was dismissed or selected for redundancy for reasons
relating to the national minimum wage (see Dismissal
relating to the national minimum wage);
- because
the employee was dismissed or selected for redundancy for reasons
relating to the Working Time Regulations 1998 (see Dismissal
relating to the Working Time Regulations 1998);
- because
the employee was dismissed or selected for redundancy for making
a protected disclosure within the meaning of the Public Interest
Disclosure Act 1998 (see Dismissal
for making a public interest disclosure);
- because
the employee was dismissed or selected for redundancy for reasons
relating to the Tax Credits Act 2002 (see Dismissal
relating to the Tax Credits Act 2002);
- because
the employee was dismissed or selected for redundancy for taking,
or seeking to take, parental leave (see Dismissal
relating to parental leave);
- because
the employee was dismissed or selected for redundancy for taking,
or seeking to take, time off for dependants (see Dismissal
relating to time off for dependants);
-
because the employee was dismissed or selected for redundancy
for taking lawfully organised official industrial action lasting
twelve weeks or less (or more than twelve weeks, in certain
circumstances) (see
Dismissal during an industrial dispute);
- because
the employee was dismissed or selected for redundancy for exercising
or seeking to exercise rights relating to trade union recognition
procedures (see Dismissal on the
grounds of trade union recognition);
- because
the employee was dismissed or selected for redundancy for exercising
or seeking to exercise the right to be accompanied at a disciplinary
or grievance hearing, or to accompany a fellow worker (see Dismissal
in connection with disciplinary and grievance hearings);
- because
the employee was dismissed or selected for redundancy for performing
or proposing to perform any duties relating to an employee's
role as a workforce representative or as a candidate to be such
a representative for the purposes of the Transnational Information
and Consultation of Employees Regulations 1999, or for taking
certain actions in connection with these regulations, or for
proposing to take or failing to take such actions (see Dismissal
relating to the Transnational Information and Consultation of
Employees Regulations 1999);
- because
the employee was dismissed or selected for redundancy on grounds
related to the Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000 (see Dismissal
relating to the Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000);
- because
the employee was dismissed or selected for redundancy on
grounds relating to the
Fixed-term Employees (Prevention of Less Favourable Treatment)
Regulations 2002 (see Dismissal
relating to the Fixed-term Employees (Prevention of Less
Favourable Treatment) Regulations 2002);
- because
the employee was dismissed without statutory dismissal and
disciplinary procedures having been followed (see
Dismissal without following statutory dismissal and
disciplinary procedures);
- because the employee was dismissed or selected
for redundancy for reasons relating to the European Public
Limited-Liability Company Regulations 2004;
- from 6
April 2005, because the employee was dismissed or selected for
redundancy for reasons relating to the Information and
Consultation of Employees Regulations 2004 for undertakings with
150 employees (from 6 April 2007 for undertakings with 100
employees and from 6 April 2008 for undertakings with 50
employees);
- from 6
April 2005, because the employee was dismissed for reasons
relating to jury service (see Dismissal relating to jury
service).
Dismissal
during an industrial dispute
It is automatically unfair to dismiss workers for taking lawfully
organised official industrial action lasting twelve weeks or less.
It is also unfair to dismiss them where they have taken action for
more than twelve weeks if the employer has not first taken such
procedural steps as are reasonable to resolve the dispute. It will
be for the employment tribunals to determine whether an employer
has taken all reasonable steps, and in doing so, they will have
regard to the behaviour of both the employer and the union. For
further information, see
Industrial action and the law: a guide for employers, their
customers and suppliers, and others (PL870).
Otherwise,
subject to the exceptions listed below, an employment tribunal
has no jurisdiction to determine a complaint of unfair dismissal
from an employee dismissed while participating in official industrial
action provided his or her employer:
- has dismissed
all who were taking part in the action at the same establishment
as the complainant at the date of his or her dismissal; and
- has not
offered re-engagement to any of them within three months of
their date of dismissal without making him or her a similar
offer.
Likewise (again,
subject to the exceptions listed below), an employment tribunal
has no jurisdiction to determine a complaint of unfair dismissal
from an employee dismissed while participating in unofficial industrial
action.
The exceptions
are that an employment tribunal can determine a complaint of unfair
dismissal from an employee dismissed while participating in official
or unofficial industrial action if the reason or main reason for
the dismissal was:
An employment
tribunal can also determine a complaint of unfair dismissal from
an employee dismissed while participating in unofficial industrial
action if the reason or main reason for the dismissal was that
the employee made a protected disclosure within the meaning of
the Public Interest Disclosure Act 1998 (see Dismissal
for making a public interest disclosure).
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