DAVID ROYDEN - EMPLOYMENT SOLICITOR
UK EMPLOYMENT LAW

David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

Laytons Solicitors, 22 St John Street, Manchester M3 4EB.
Tel: +44 (0) 161 834 2100
Fax: +44 (0) 161 834 6862

Offices at London, Manchester and Guildford, UK

 

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UNFAIR DISMISSAL

Meaning of Dismissal

Dismissal is defined as the termination of employment by:

  • the employer, with or without notice; or
  • the employee's resignation, with or without notice, where the employee has resigned because the employer by his or her conduct, in breach of the contract of employment, has shown an intention not to be bound by the contract (this is commonly known as 'constructive dismissal' (see below)) or
  • the expiry of a limited-term contract without its renewal. A limited-term contract is a contract for a fixed term or the performance of a specific task, or one which ends when a specified event does or does not occur.

If, after being given notice of dismissal by the employer, an employee gives due notice, in writing or otherwise, to terminate the contract of employment at an earlier date than required by the employer, the employee will still be regarded as dismissed by the employer but the effective date of termination will be the date that the employee's own notice, rather than the employer's notice, takes effect.

Constructive Dismissal – Breach of Contract by the Employer

A tribunal may rule that an employee who resigns because of conduct by his or her employer has been 'constructively dismissed'.

For a tribunal to rule in this way the employer's action has to be such that it can be regarded as a significant breach of the employment contract indicating that he or she intends no longer to be bound by one or more terms of the contract: an example of this might be where the employer arbitrarily demotes an employee to a lower rank or poorer paid position. The contract is what has been agreed between the parties, whether orally or in writing, or a combination of both, together with what must necessarily be implied to make the contract workable.

When is a Dismissal Fair or Unfair?

The law on unfair dismissal does no more than give employees a legal right to be treated in the way in which a fair and reasonable employer would treat them anyway. For an employer to dismiss an employee fairly, he or she must both:

  • have a valid reason for dismissing the employee, and
  • act reasonably in treating that reason as a sufficient reason for dismissing the employee.

The second of these conditions does not apply in cases where the dismissal is unquestionably unfair (see below).

Has the Employer Established A Fair Reason For Dismissal?

Legislation lists five specific types of reason which can justify dismissal. They are as follows:

Conduct

This is by far the most common reason for dismissal and the one which leads to the largest number of complaints of unfair dismissal. For this reason this guide is chiefly concerned with dismissal for disciplinary reasons. On the specific question of criminal offences see the paragraph on Dismissal in Connection with Criminal Offences.

Capability

The employee is unable satisfactorily to do or does not have the qualifications for the job. The question of the employee who becomes unable to do his or her job because of illness is discussed further below (see Dismissal in Connection with Illness).

Redundancy

In general, an employee can have no grounds for claiming unfair dismissal if the dismissal was because of redundancy, that is because the employer had no work or insufficient work for the employee to do. There are, however, some circumstances in which it is unfair to make an employee redundant (see Dismissal on Grounds of Redundancy).

A Statutory Requirement

This may prevent the employment continuing, for example where a chauffeur has lost his driving licence and there is no other suitable job available.

Some other Substantial Reason

Experience has shown that the above reasons are likely to cover almost every case where dismissal is necessary. Situations may arise, however, where an employer has a good reason for dismissing an employee which is not one of those listed above. An example would be the dismissal of an employee who was taken on as a temporary replacement for a worker who was returning after being suspended for medical reasons (provided, of course, that it had been clearly explained to the employee concerned that the job was only temporary). For such a reason as this, described in legislation as 'some other substantial reason', the dismissal may also be fair.

Automatic Unfair Reasons for Dismissal

The dismissal of an employee will be held to be unfair and give rise to a claim of automatic Unfair Dismissal if it is for one of the following reasons:

  • because the employee was, or proposed to become, a member of an independent trade union; or had taken part or proposed to take part in the activities of an independent trade union at an appropriate time; or was not a member of a trade union, or had refused or proposed to refuse to become or remain a member of a trade union. Selection for redundancy on these grounds will also be held to be unfair. An employee will also be held to be unfairly dismissed if he or she is dismissed for refusing to make a payment (e.g. to a union or charity) in lieu of union membership, or for objecting to his or her employer deducting a sum from his or her wages or salary to make such a payment;
  • because the employee was dismissed or selected for redundancy on maternity related grounds;
  • because the employee was dismissed or selected for redundancy for taking or seeking to take paternity leave;
  • because the employee was dismissed or selected for redundancy for taking or seeking to take adoption leave;
  • because the employee was dismissed or selected for redundancy for requesting flexible working arrangement;
  • because the employee was dismissed or selected for redundancy for having sought, in good faith, to assert a statutory employment protection right;
  • because the employee was dismissed or selected for redundancy for taking or proposing to take certain specified types of action on health and safety grounds;
  • because the employee was dismissed on the transfer of an undertaking or part of an undertaking, and the transfer itself, or a reason connected with it, is the main reason for the dismissal, unless it can be established that the dismissal was for an economic, technical or organisational reason entailing changes in the work force;
  • because, subject to certain conditions, the employee was a shop worker or a betting worker and was dismissed or selected for redundancy for refusing to work on Sundays; or he or she was dismissed or selected for redundancy for giving, or proposing to give, an "opting out" notice to his or her employer;
  • because the employee was dismissed or selected for redundancy for performing, or proposing to perform, any duties relevant to his or her role as an employee representative or as a candidate to be a representative of this kind or as a participant in the election of such a representative;
  • because the employee was dismissed or selected for redundancy for performing, or proposing to perform, any duties relevant to his or her role as an employee occupational pension scheme trustee;
  • because the employee was dismissed or selected for redundancy for reasons relating to the national minimum wage;
  • because the employee was dismissed or selected for redundancy for reasons relating to the Working Time Regulations 1998;
  • because the employee was dismissed or selected for redundancy for making a protected disclosure within the meaning of the Public Interest Disclosure Act 1998;
  • because the employee was dismissed or selected for redundancy for reasons relating to the Tax Credits Act 2002;
  • because the employee was dismissed or selected for redundancy for taking, or seeking to take, parental leave;
  • because the employee was dismissed or selected for redundancy for taking, or seeking to take, time off for dependants;
  • because the employee was dismissed or selected for redundancy for taking lawfully organised official industrial action lasting eight weeks or less (or more than eight weeks, in certain circumstances) where the action started on or after 24 April 2000;
  • because the employee was dismissed or selected for redundancy for exercising or seeking to exercise rights relating to trade union recognition procedures;
  • because the employee was dismissed or selected for redundancy for exercising or seeking to exercise the right to be accompanied at a disciplinary or grievance hearing, or to accompany a fellow worker;
  • because the employee was dismissed or selected for redundancy for performing or proposing to perform any duties relating to an employee's role as a workforce representative or as a candidate to be such a representative for the purposes of the Transnational Information and Consultation of Employees Regulations 1999, or for taking certain actions in connection with these regulations, or for proposing to take or failing to take such actions;
  • because the employee was dismissed or selected for redundancy on grounds related to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000;
  • because the employee was dismissed or selected for redundancy on grounds relating to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002;
  • because the employee was dismissed without statutory dismissal and disciplinary procedures having been followed;
  • because the employee was dismissed or selected for redundancy for reasons relating to the European Public Limited-Liability Company Regulations 2004;
  • because the employee was dismissed or selected for redundancy for reasons relating to the Information and Consultation of Employees Regulations 2004 for undertakings with 150 employees (from 6 April 2007 for undertakings with 100 employees and from 6 April 2008 for undertakings with 50 employees);
  • because the employee was dismissed for reasons relating to jury service.

Has the Employer Followed A Fair Procedure Prior to Dismissal?

An employer must act reasonably in all the circumstances in treating the reason for dismissing the employee as a sufficient reason for the dismissal. Not only must the employer have a valid reason for the dismissal, but also he or she must have acted reasonably in all the circumstances in dismissing the employee for that particular reason. The question whether the employer acted reasonably not only involves consideration of the way in which the dismissal was carried out, but also whether he or she acted reasonably in relation to the situation leading up to the decision to dismiss the employee. For example, if the employee was dismissed for misconduct or lack of capability, it is necessary to consider whether he or she was warned and given a chance to improve or, if redundancy was the reason for dismissal, whether the employee was considered for alternative work within the same organisation.

In deciding whether the employer acted reasonably in dismissing the employee the tribunal will also take account, amongst other factors, of whether he or she followed appropriate disciplinary procedures. As of 1 October 2004, statutory dismissal and disciplinary procedures came into force. If those procedures apply and are not treated as having been complied with, a dismissal will be unfair if an employee is dismissed without the statutory procedure having been followed.

From the same date, however, if an employer fails to follow a disciplinary procedure which goes beyond the statutory procedure, that failure will not by itself make the dismissal an unfair one - provided that properly following the procedure would have made no difference to the decision to dismiss, and that the dismissal was fair in all other respects.

Written Statement of Reasons for Dismissal

The Employment Rights Act 1996 provides that employees who have been dismissed may request from their employer a written statement of the reasons for their dismissal, which their employer must provide within 14 days. Employees who are dissatisfied because they have not received a statement or believe the statement to be inaccurate may refer the matter to an employment tribunal. All employees with one year's continuous service with their employer qualify for this right. An employee who is dismissed at any time and for any reason while she is pregnant or during a statutory maternity leave period will be entitled to receive a written statement of the reason for her dismissal, without having to request it and regardless of her length of service.

There is of course nothing to prevent an employer from providing written statements voluntarily for employees who do not qualify for this right under employment legislation.

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