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Unfair dismissal

Who is eligible to claim for unfair dismissal?

For a dismissal to be fair, the employer must show that it had a potentially fair reason for dismissal and that it acted reasonably in treating that reason as sufficient to justify dismissing the employee.

Any employee who was employed before 1st January 2015 and has six months’ continuity of service. Any employee who was employed after 1st January 2015 and has one year’s continuity of service. To bring a claim for unfair dismissal the employee must have been dismissed.


What counts as a fair reason for dismissal?

For a dismissal to be fair, the employer must show that it had a potentially fair reason for dismissal and that it acted reasonably in treating that reason as sufficient to justify dismissing the employee. 

Potentially fair reasons for dismissal are capability (poor performance or ill health) or qualifications, conduct, redundancy, breach of a restriction imposed by law (for example Control of Housing and Work legislation). Failing any of these reasons, what is referred to as ‘some other substantial reason’. ‘Some other substantial reason’ is a category designed to catch potentially fair dismissals that do not fall into any of the other categories. For example, a failure by an employee to accept changes to terms and conditions, or a personality clash. 


What happens next

Once the employer has established a potentially fair reason for dismissal, the Tribunal will then decide if the employer acted reasonably in dismissing the employee for that reason. The question of fairness is usually divided into two parts. Firstly, was the dismissal procedurally fair and secondly, was it substantively fair? 


Procedural fairness 

Where the employer fails to carry out a fair procedure prior to dismissing an employee, the employer cannot successfully argue that the dismissal should be regarded as fair, because even if a fair procedure has been carried out, it would have made no difference to the outcome. This means that procedurally unfair dismissals will be unfair. In such circumstances, having found that the dismissal was unfair because of the procedural failings, the Tribunal will usually reduce the amount of compensation the employee would have otherwise received, to reflect the possibility that there would have been a fair dismissal if the dismissal had not been procedurally unfair. 

The procedure the employer should follow prior to a dismissal will depend upon the reason for dismissal. For example:

Conduct dismissals: The Code of Practice on Disciplinary would be relevant. There are some principles of fairness that apply to all dismissals. For example, the employee should know that they are at risk of dismissal and the reason why, and should be allowed to put forward their case at a meeting. The employee should also be given the right to appeal the decision to dismiss them.

Poor performance or conduct dismissals: 

In dismissals for poor performance or conduct, the employer should investigate the issue and inform the employee in writing that there are issues. A capability or disciplinary hearing should be conducted and the employee should be informed of the decision in writing. The employee should be given the right to appeal the decision.

Redundancy dismissals: 

In redundancy dismissals the procedure for individual and possibly collective consultation should be followed. 


Substantive fairness 

When applying the substantive fairness test, the Tribunal will consider whether the actions of the employer were within the band of reasonable responses of a reasonable employer, taking into account all the circumstances of the case. The Tribunal must not substitute its own view and must only take into account facts known to the employer at the time the decision to dismiss was made. The Tribunal will also consider the size and administrative resources of the employer’s organisation. 

The Tribunal will expect larger organisations to have more sophisticated policies and procedures than small organisations.

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