Unfair Dismissal

The vast majority of employment related claims that employees make against employers are for unfair dismissal.

Surprisingly there is still quite a lot of confusion as to what the unfair dismissal rules are. So here are the basic principles.

In most cases employees must have worked for their employer for at least one year before they are sacked, in order to be able to claim unfair dismissal.

If you have worked for one year or more, and genuinely believe that you have been unfairly dismissed and have suffered financial loss as a result, you can make a claim to an Employment Tribunal. Although the rules do vary it is safest to make a claim sooner rather than later; in most cases you need to make a claim within three months of the end of your employment. If you delay you may not be allowed to make a claim at all.

Employees who are dismissed for an automatically unfair reason can make a claim to an Employment Tribunal even if they have not been employed for one year. There is a long list of automatically unfair reasons but the main ones are if you are sacked:

• because you are pregnant or for any reason connected with maternity leave;
• because you have tried to exercise your rights under the Working Time Regulations;
• because you are a trade union member;
• because you have asked to be represented at a disciplinary or grievance hearing or because you accompany a work colleague to such a hearing;
• because you assert a statutory right (for example if you ask for a contract of employment);
• because you are a shop worker who refuses to work on a Sunday; or
• because you take certain types of action in relation to health and safety.

An employer who is faced with an Employment Tribunal claim from an employee he sacked can defend the claim successfully if he does two things. Firstly he must establish that the reason for the dismissal was due to the misconduct of the employee or because the employee could not do the job properly or because the job was redundant.

Having convinced the Tribunal that there was a legitimate reason for the dismissal the employer must then convince it that the decision to terminate was reasonable in all the circumstances. In deciding this the Tribunal will take into account the size and resources of the employer.

For example sacking an employee with 12 months service because he is late for work once will be unfair. Yes, it is misconduct to come to work late but it’s not reasonable to sack an employee for a first offence. Sacking an employee who repeatedly comes to work late and who has been warned repeatedly and whose last warning was a final warning will probably be fair.