Unfair And Wrongful Dismissal

Under section 94 of the Employment Rights Act 1996, employees have a right to be dismissed fairly if they have been working for an employer for two or more years (this is referred to as the ‘qualifying period’).   A dismissal is considered unfair if it is not on the basis of:

• An employee’s capability or qualifications
• An employee’s conduct
• Redundancy
• A breach of a statutory duty or restriction, or;
• ‘Some other substantial reason” (SOSR).  Examples of SOSR include a breakdown in trust and confidence or organisational restructuring; and

A dismissal will also be deemed lawful if the Employment Tribunal determines that you, as the employer had acted reasonably in dismissing an employee for a potentially fair reason.

Dismissal will be considered automatically unfair and does not require two qualifying years of employment to bring a claim to the Employment Tribunal if it is for any of the following reasons:

• pregnancy and childbirth;
• parental leave;
• health & safety reasons;
• whistleblowing;
• victimisation;
• acting as a representative;
• seeking flexible working;
• jury service; and
• taking part in protected industrial action.

Dismissal may be considered ‘wrongful’ if the employer did not follow the correct procedure when dismissing an employee.  In most cases of wrongful dismissal, the employer may not have followed their own internal HR process or adhered to the employment contract.  An example of this may be where dismissal occurs without giving enough notice, terminating a fixed-term contract before the end date, or not following disciplinary procedures correctly.  Again, like automatically unfair dismissal, an employee does not need to have been employed for the qualifying period of two years to bring a claim.

ACAS publishes a Code of Practice for employers on disciplinary and grievance procedures.  This is considered best practice and should be followed if you have an employee who faces possible dismissal due to misconduct or poor performance before making a final decision to end the individual’s employment.  This is important as if the claim reaches the Employment Tribunal, the Tribunal will take into account whether you followed the ACAS Code when deciding whether or not you acted reasonably in dismissing the employee.