Understanding unfair dismissal – Thomas & Thomas Solicitors Ltd
If you are facing an employment-related legal issue, you are not alone. We understand that dealing with employment law can be a daunting task, whether you are the employer or employee.
Unfair dismissal is a statutory right that is important to understand when an employee is abruptly dismissed. Cases resulting in compensation have been falling since 2010, although in 2021/22 there has been an increase in cases successful in favor of the employee. Today we explain what you need to know about unfair dismissal and how it can affect you.
What is unfair dismissal?
Employees who have worked in a company for more than two years have the right not to be unfairly dismissed. However, employees who have not yet worked in a company for two years can still benefit from this right, subject to exceptions. What constitutes “unfair dismissal” must include at least one of the following:
- No valid reason for dismissal
- No sufficient reason to justify dismissal
- The employer did not follow a fair procedure
The fair dismissal procedure must also follow the Acas Code of Practice on Disciplinary and Grievance Procedures if the reasons for dismissal involved poor conduct or poor performance. While employees are generally protected by the Acas code, each company has its own disciplinary or dismissal procedure to follow.
There is a limited window of opportunity for an employee to begin the unfair dismissal appeal process. This starts from the last day of employment and lasts for three months.
What should employers do if they want to terminate an employee?
The employer must demonstrate that there is good cause for an employee to be terminated. If there are several reasons for dismissal, the main reason must be valid. The grounds given for unfair dismissal cannot be based on new discoveries or subsequent behavior.
However, even if an employer proves that the dismissal was justified, it is ultimately up to the court to decide whether the dismissal was fair or not. They will decide whether the employer responded reasonably by dismissing the employee or whether a less severe sanction would have been appropriate.
If a court finds that no reasonable employer would use the reason given to dismiss an employee, the dismissal will still be considered unfair. This decision will be made taking into account the size and resources of the employer, for example if it is an SME.
Five fair reasons for dismissal
To be considered fair, the reason for dismissal must fall into at least one of the five categories defined by the Employees’ Rights Act 1996.
- Lack of capacity:
The employee did not have the qualifications or ability to perform the work for which he was employed. - True redundancy:
The employee role is no longer necessary for professional reasons. - To drive:
The employee behaved in a manner that constitutes serious misconduct, including poor attendance, dishonesty and failure to follow instructions. - Contravention of a legislative text:
If an employee is no longer able to perform an essential part of their role, such as if they are banned for speeding when their daily job involves driving, this is called a traffic violation. law. - Another important reason (SOSR):
The dismissal does not follow any of the above reasons. The SOSR may include a personal disagreement with the employer or a non-renewal of a fixed-term contract specific to certain functions. Each SOSR case will be determined by its own context and facts.
The consequences of unfair dismissal
If a dispute arises regarding the termination of an employee, the parties involved may consider alternative solutions such as compromise agreements. This may include reinstating the employee in their previous position or rehiring them in a different role.
Financial compensation may be part of the resolution, taking into account factors such as the employee’s age, gross weekly salary and length of service. If the agreement provides for reinstatement and is not implemented, additional compensation may be required.
It is essential to note that there are limits to the compensation that can be awarded in dispute resolution, with exceptions for cases relating to health and safety or whistleblowing.
Thomas and Thomas Solicitors are a friendly, local law firm with a unique outlook and inclusive approach to clients with years of experience. With a team of specialists in their specific legal field, the firm offers a range of legal services, including employment law. Contact us today by emailing [email protected] or visiting to find your nearest office.
