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UNFAIR DISMISSAL Introduction Powered By Docstoc


Where an employer dismisses an employee without good reason, the employee can potentially raise an Employment
Tribunal claim for either wrongful or unfair dismissal. Wrongful dismissal can arise where a dismissal is in breach of
contract, for example, where an employee is dismissed without notice in circumstances which does not justify
summary dismissal. In contrast, unfair dismissal is a purely statutory creation.

In order to raise a claim for unfair dismissal, the employee will require to satisfy a Tribunal that:-

• they were an employee, whether part time or full time

• they had the necessary continuity of service (normally one year’s continuous service) to bring a claim for unfair
  dismissal, and

• they were dismissed.

However, there are certain circumstances where employees with less than one year’s service can bring an
Employment Tribunal claim for unfair dismissal. Examples of this include dismissal for health and safety reasons, as a
result of whistle blowing, or on the grounds of race, sex, disability, sexual orientation or religious belief. If there is any
uncertainty in relation to whether one year’s service is necessary to bring a claim it is advisable to seek advice from
an employment solicitor.

Potentially Fair Dismissals

There are six situations where a dismissal will potentially be fair. These are where the dismissal is for:-

• capability

• conduct

• redundancy

• contravention of a statutory enactment

• some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which
  the employee held

• retirement of the employee

Once an employer has shown that the reason for dismissal falls within one of the above categories the Tribunal will
then look to see whether in all the circumstances and having regard to the size and administrative resources of the
employer, the employer acted reasonably.

Automatically Unfair Dismissals

There are certain circumstances where a dismissal will be automatically unfair. In such cases the employee requires
to establish only that the reason for the dismissal was one of the automatically unfair reasons. The question of
reasonableness does not factor. These include dismissals: -

• related to membership of Trade Union

• due to participation in activities of trade union

• by reason of pregnancy
• for health and safety reasons

• due to a transfer of an undertaking (unless ETO defence applies)

• due to employee attempting to enforce a statutory right

• due to whistle-blowing

This list is not exhaustive. If an employer anticipates that a dismissal may be interpreted by an employee as falling
within one of the reasons for automatically unfair dismissal then it is advisable to obtain employment law advice in
order to identify the risk of a Tribunal viewing the dismissal in this way.

Constructive Dismissal

Another situation where an employee can claim unfair dismissal is where they resign and claim constructive dismissal.
This claim may arise where the employee terminates his contract of employment, with or without notice, in
circumstances where he is entitled to terminate by reason of the employer’s conduct. One example of such conduct
that may amount to constructive dismissal is where the employer has failed to pay the employee’s salary. However, it
is not enough for the employee to show that the employer’s conduct has been unreasonable in some way. The
employer must have broken a significant term of the contract and then the employee would have to show that the
breaking of the contract was what caused him to leave. Employee’s should exercise caution in resigning from their
employment and claiming constructive dismissal given the high test to be satisfied in order to succeed at Tribunal. If
an employee is in any doubt as to whether the employer’s conduct amounts to a significantly serious breach of
contract to allow them to resign and seek constructive dismissal then it is recommended that they contact an
employment lawyer for advice in order to minimise the risk of resigning and then finding that they are both without
employment and unable to pursue an Employment Tribunal claim.

Dismissal Procedures

On 6 April 2009 the statutory dismissal, disciplinary and grievance procedures were repealed in England, Scotland
and Wales (but not in Northern Ireland). Since then, subject to transitional procedures, for new cases the ACAS
Discipline and Grievance Code of Practice has applied. For more information please see The New Disciplinary and
Grievance Regime factsheet.

In relation to retirement, the procedures set out in the Employment Equality (Age) Regulations 2006 will apply when
an employer is seeking to dismiss any employee on the grounds of retirement.

Claims and Awards

A claim should be made to an Employment Tribunal within 3 months of the date of dismissal (3 months less one day).

In the event that a Tribunal finds the dismissal to be unfair they can make the following orders:-

• reinstatement

• re-engagement

• compensation

Although Employment Tribunals have the power to order reinstatement and re-engagement this power is seldom
used. The basic award is calculated in the same way as a redundancy payment and is related to age and length of
service. The maximum basic award is £11,400. The maximum unfair dismissal compensatory award is currently
£65,300, however in certain limited circumstances, such as in whistleblowing cases, the cap does not apply. Where
an employer unreasonably fails to comply with the ACAS Discipline and Grievance Code of Practice the Tribunal may
increase any award by up to 25% subject always to the cap of £65,300.

Further information is also available at: -


For more information please contact our experienced employment law solicitors in Edinburgh, Glasgow and London.

 Contact Details:

 Name:       Morton Fraser Employment Team
 DDI:        0131 247 1000 / 0141 274 1100 / 020 7397 8621
 Email:      employment@morton-fraser.com

The contents of this article are for information only and are not intended to be construed as legal advice and should not be treated as a substitute
for specific advice. Morton Fraser accepts no responsibility for the content of any third party website to which this article refers.

Morton Fraser LLP is authorised and regulated by the Financial Services Authority.