Unfair Dismissal

There are several ways in which your dismissal could be unfair:

• Your employer does not have a fair reason for dismissing you (see below);
• Your employer did not follow a fair and/or correct procedure when dismissing you;
• You were dismissed for an automatically unfair reason.

If you are an employee with at least one year’s continuous employment and you have been dismissed from your employment, the onus of proof is on your employer to show that the reason was for one of five potentially fair reasons:

• Misconduct;
• Incapability or qualification (including capability through ill health);
• Redundancy;
• Illegality;
• Some Other Substantial Reason (“SOSR”) which justifies the dismissal.

Your employer showing that the dismissal was for one of the above reasons does not itself make the dismissal fair and an Employment Tribunal will still need to decide whether your employer acted reasonably in dismissing you for that reason.
The procedure followed by your employer in determining your dismissal will be considered by an Employment Tribunal and in accordance with the ACAS Code of Guidance on Disciplinary and Grievance Procedures, a Tribunal may increase or reduce compensation by up to 25% for any unreasonable failure by an employee or employer to follow the ACAS Code, e.g. your employer fails to advise you of your right to appeal your dismissal.
In some circumstances it may be possible to still bring a claim with just less than one year’s continuous service. There are also circumstances where a dismissal is automatically unfair and no minimum period of continuity of service is required to bring such a claim. Examples of claims for automatic unfair dismissal include but are not limited to:

• Your employer dismissing you for exercising a statutory right (e.g. time off for dependants);
• Your employer dismissing you before, during or after a business transfer;
• Your employer dismissing you on the grounds of pregnancy or maternity rights;
• Your employer unfairly selecting you for redundancy;
• Your employer dismissing you for taking action on health and safety grounds; and
• Your employer dismissing you on the grounds of your part-time/fixed-time employment status.

Time limits for presenting a complaint to an employment tribunal are strictly enforced and in many circumstances are less than three months. You should therefore take legal advice in respect of any dismissal as a matter of priority.