unfairdismissal

Unfair Dismissal

Unfair Dismissal

A dismissal may be fair or unfair depending on the circumstances of the dismissal.

You need to work through the following four steps to identify whether you can make a claim for unfair dismissal:-

Step one: who cannot claim unfair dismissal

There are some employees who can never claim unfair dismissal. They are:-

People who are not employees, such as independent contractors or freelance agents. Employers often claim that people who are actually employees are self-employed. It is important to check the relationship between the employee and their ‘employer’, because this will determine the employee’s actual employment status

For more details, see under heading Are you an employee or self-employed in Contracts of employment.

Police officers

Members of the armed forces

Employees above the normal retirement age for their occupation

Are you below normal retirement age

You can only make a complaint of unfair dismissal if you are below the normal retirement age for your job, unless you are making a claim for unfair dismissal for a reason which is an automatically unfair one.

The retirement age must be the same for men and women and might not be the same as the state retirement age. For example, fire-fighters are expected to retire at 55 and cannot make a claim for unfair dismissal after that age. If there is no normal retirement age for the job, or if there is one but it is never enforced, then you can make a claim up to the age of 60.

Step two: have you actually been dismissed

What counts as dismissal

You are dismissed when your employer brings the contract of employment to an end.

All the following count as dismissal:-

your employer ends your employment with or without notice

your employer does not renew a fixed term contract that has run out

you are made redundant, including if you take voluntary redundancy

your employer refuses to take you back after a strike or lockout

constructive dismissal. This is when your employer makes it impossible for you to carry on working so you resign

you resign under pressure from your employer

if you are a woman on maternity leave, and your employer refuses to allow you to return to work after maternity leave

self dismissal. An employer may argue that you have dismissed yourself by behaving in a way that brings the contract to an end. However, unless it is obvious that you have actually resigned, you will have been dismissed by your employer

you have been laid off or put on short time working when your contract does not allow for this.

What does not count as dismissal

The following will not count as dismissal:-

you resign without any pressure from your employer or leave by mutual agreement

you are suspended on full pay

your employer withdraws a job offer before you start work

circumstances change and you can no longer continue to work for your employer. This is known as frustration of contract

you are laid off or put on short-time working and your contract allows for this, and then you claim redundancy. You are then actually resigning

you receive an ambiguous dismissal from your employer and it is not clear if the employer is dismissing you or not.

What does not count as dismissal - resignation

It is important to remember that what is called a ‘resignation’ may really be a dismissal. Whether the employee has resigned or they have been dismissed depends on who really terminated the employment contract.

Normally, if you resign, you bring the employment contract to end and so you have not been dismissed. However, there are circumstances where, although you have resigned, you will still be treated as being dismissed. This could be:-

if you resigned under pressure from your employer

if no notice has been given but it is clear that dismissal is imminent, for example, your work is being given to other people. This could be constructive dismissal

if you resigned in the heat of the moment, for example, during an argument, and your employer will not subsequently agree to let you retract your resignation, or if you gave an ambiguous statement which your employer has taken to mean a resignation, and will not allow you to retract it.

What does not count as dismissal - suspension on full pay

If you are suspended, for example, to await the outcome of a disciplinary hearing, your contract of employment will continue to run until either you resign or are dismissed.

What does not count as dismissal - withdrawal of a job offer

Where an employer has made an offer of a job to you, but subsequently changes their mind, you may be able to claim compensation if the job offer was unconditional. You may be able to claim compensation for giving up your old job.

If the job offer was conditional, for example, it was made subject to references or medical examination, and these were unsatisfactory, you will not be able to claim compensation.

What does not count as dismissal - frustration of contract

Frustration of contract happens when an employee cannot fulfil their contractual obligations because of an unforeseen change of circumstances. If a contract has been frustrated, this means that it no longer exists and neither the employer nor the employee has any obligations under it. There is therefore no dismissal.

The two most common ways in which a contract may be frustrated are long-term sickness or injury of the employee, and imprisonment of the employee.

Constructive dismissal

Constructive dismissal occurs if you resign because your employer breaches the employment contract, by taking action such as cutting your pay, changing your working conditions, and so on, and so makes it impossible for you to continue working. Constructive dismissal is a type of unfair dismissal .

Step three: have you been discriminated against

You may believe that you have been dismissed because of because of your sex, race, disability, religion or sexuality.

If you have been dismissed for a discriminatory reason you will almost always have been unfairly dismissed as well.

Step four: what is the reason for the dismissal and is it one which means the dismissal is automatically unfair

The reason for the dismissal decides what action you can take. The reason your employer has given you may not be the real reason for the dismissal.

In most circumstances, if your employer wants to dismiss you, they must follow proper dismissal and disciplinary procedures laid down by law. If they do not, and you have worked for your employer for at least a year, your dismissal will be automatically unfair - see under heading Procedure your employer must follow when dismissing or disciplining you.

If you have been dismissed for one of the following reasons, and have worked for your employer for at least a year, an employment tribunal will find that you have automatically been unfairly dismissed:-

your employer has not followed a proper dismissal procedure before dismissing you - see under heading Procedure your employer must follow when dismissing or disciplining you.

transfer of the employer’s business. If the dismissal is as a result of the business you work for having been taken over by a new owner, the dismissal will be automatically unfair and you can make a claim provided you have worked there for one year

not declaring a spent conviction.

Your employer says your conduct is poor, including gross misconduct

Certain types of behaviour by an employee are thought to be unacceptable and if the employee has behaved in this way, any dismissal as a result will probably be fair. Some forms of unacceptable behaviour are known as gross misconduct and include theft at work, violence at work, harassment (such as sexual or racial harassment) of other employees or customers, and breach of health and safety rules.

Others types of behaviour which have been found to be misconduct include the following list. Whether the dismissal which results from such behaviour is fair or not will depend on the circumstances of the case .

time-keeping and absenteeism

refusal to obey a reasonable instruction from the employer, for example, refusing to wear particular clothing at work where the clothing is needed for health and safety reasons

insolence or rudeness, including use of bad language. Things said in the heat of the moment would not usually justify a dismissal

carelessness. If an employer has previously accepted poor standards from an employee without any warning, then dismissing them for another example of carelessness is likely to be an unfair dismissal

criminal activity at work

fighting or violence at work. A tribunal would look at all the circumstances of the case, such as whether the employee was acting in self defence, whether they were provoked, how previous incidents of fighting have been dealt with by the employers

drinking or using/taking drugs during working hours (including possessing drugs or drink at work) and sometimes out of work, is usually treated as gross misconduct but will depend on the circumstances of each case.

Procedure your employer must follow when dismissing or disciplining you

Normally your employer must follow a set procedure when dismissing or disciplining you. If they do not, any dismissal will be automatically unfair and you will be able to make a claim for unfair dismissal to an employment tribunal . If you win your case, the tribunal will increase the compensation awarded to you because your employer did not follow the procedure.

In most circumstances, if your employer wants to dismiss you or discipline you, they must follow proper dismissal and disciplinary procedures laid down by law. Before dismissing or disciplining you, your employer must:

send you a written statement, telling you why they want to dismiss or discipline you

hold a meeting with you to discuss the matter

hold an appeal meeting with you, if you want to appeal against your employer's decision.

After the meeting with you, or the appeal meeting if there is one, your employer must make a final decision about what they are going to do, and tell you what it is.

If they are dismissing you, your employer must tell you when the dismissal is to take effect, and how much notice they are giving you. They do not have to do this in writing, but it would be good practice to do so. Notice of dismissal must be given directly to you and not through a third party, for example your trade union.

If you are not happy with your employer's decision and you think your rights have been ignored, you may be able to take your case to an employment tribunal. You must comply with the dismissal and disciplinary procedure first. If you do not, any future award you get from a tribunal may be reduced. If your employer does not follow the proper procedures, any dismissal will be automatically unfair and you will be able to make a claim for unfair dismissal to an employment tribunal . If you win your case, the tribunal will increase the compensation awarded to you because your employer did not follow the procedure.

If you were not given the right notice

If you were dismissed without being given the legal notice you are entitled to, then the dismissal date is counted as the day that your notice would have run out. So if, for example you were entitled to two weeks notice, and your employer told you that you are dismissed with immediate effect on 2 June, you need to add two weeks to that date to work out your actual length of employment. So in this example, your employment would be treated as ending on 16 June because you are entitled to two weeks notice.

What is wrongful dismissal

If your employer does not give you the rights you are entitled to under your contract of employment, for example, your employer does not give you the correct notice of dismissal that you are entitled to under your contract, this is known as a breach of contract.

Your employer may pay you an amount of money as compensation instead of giving you notice of dismissal or allowing you to work out your notice. This is called pay in lieu of notice. If there is a term in your contract which allows your employer to pay you pay in lieu of notice instead of giving you notice, then provided you are paid the correct amount of pay in lieu, there will be no breach of contract.

If your employer does not give you the correct notice and does not pay in lieu instead, or does not pay the right amount of pay in lieu of notice, you may be able to claim compensation for the breach of the contract by making a claim for wrongful dismissal.