Unfair dismissal

The Employment Rights Act 1996 provides that an employee who has been employed for more than 24 months has the right not to be unfairly dismissed.

The first burden on an employee alleging that he was unfairly dismissed is to show that there was, in fact, a dismissal.

Even where the dismissal is potentially fair, the employer is obliged to thoroughly investigate and deal with the dismissal fairly, proportionately and in accordance with proper procedures. Thus, a dismissal which might have been considered fair can be rendered unfair, if not properly and fairly investigated.

In order to qualify to claim unfair dismissal, an employee must normally have been continuously employed for 24months at the date of dismissal. However, there are exceptions to this rule, such as claims based on dismissals for ‘asserting a statutory right’ or for whistleblowing.

All claims for unfair dismissal must be brought to an industrial tribunal within 3 months.

• Some dismissals which breach statutory rights are automatically unfair such as pregnancy dismissals;
• dismissal in connection with parental leave;
• dismissal in connection with time off for dependents;
• dismissal in connection with working time;
• health and safety dismissals;
• dismissal for the assertion of a statutory right;
• unfair selection for redundancy;
• dismissal for trade union membership and activities;
• dismissal in connection with a transfer of an undertaking;
• dismissal in connection with the right to the minimum wage.

Some dismissals are potentially fair:

• misconduct;
• redundancy; but see the section on redundancy
• incapacity (covering both illness and inability);
• to avoid unlawful activity (e.g. loss of driving license);
• corruption, including taking bribes;
• being drunk at work;
• taking drugs at work;
• abusive behavior;
• leaking confidential documents or information;
• hacking into computer files – this includes stealing passwords;
• being absent from work on a regular basis;
• being constantly late for work;
• wearing unsuitable work clothes or bad appearance;
• taking holidays without informing the employer;
• unsuitable conduct with other members of staff during office hours;
• unsuitable conduct outside work hours that has an impact on the employer;
• insulting behavior towards the employer.

All of the above may be persistent behavior for which an employee has received earlier warnings or they may be individual incidents that are of a serious nature.

The right to claim unfair dismissal does not apply to those subject to the following exclusions:

• the armed forces;
• exclusions by agreement;
• diplomatic immunity;
• illegality;
• industrial action;
• mariners;
• national security;
• non-employees;
• normal retirement age;
• police;
• share fishermen;
• state immunity;
• those working abroad.

See also