Generally, an employee who has completed the applicable qualifying period of service has the right not to be unfairly dismissed. The applicable qualifying period for most employees is two years. The employee must have been dismissed in one of three ways: termination by the employer, expiry of a limited-term contract or constructive dismissal.

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The dismissal of a qualifying employee will be unfair unless:

  • The employer can show that the reason (or principal reason) for the dismissal was one of the five potentially fair reason
  • The tribunal finds that in all the circumstances (having regard for the employer’s size and administrative resources) the employer acted reasonably in treating that reason as a sufficient reason for dismissal
  • The employer follows a reasonable procedure in dismissing the employee. In cases of misconduct or poor performance, the ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code) sets out recommendations as to the procedure employers should adopt prior to dismissing an employee. Tribunals must take the ACAS Code into account when deciding whether an employer has acted reasonably

The five potentially fair reasons for dismissal are:

  • Capability: Where an employees’ health or abilities are not up to the demands of their role
  • Conduct: Where there is either a single act of serious misconduct (gross misconduct) or there are a series of acts that are less serious. For example, where the employee is consistently late, disobeys reasonable orders, is abusive to others or frequently absent
  • Redundancy: Where the role no longer exists or there is a reduced requirement for employees to carry out a particular type of work, and the employee has been selected for redundancy based on fair criteria and after a fair selection process
  • Statutory restriction: Where the employee could not continue to work in the position they held without the employer being in breach of statute. For example, if they need to drive as an essential part of their job and they’re disqualified from driving
  • Some other substantial reason (“SOSR”): Where the dismissal can be shown to be of a kind such as to justify the dismissal of an employee holding the position that you held. The reason for dismissal must be substantial

Dismissals for certain reasons are deemed automatically unfair and, in most such cases, employees do not need a qualifying period of employment.

If an employment tribunal finds that the dismissal is unfair, it can order the employer to re-engage or reinstate the employee or (as is more likely in practice) pay the employee compensation.

Our solicitors can also assist you defend an unfair dismissal claim. If you do receive a claim for unfair dismissal you will require proactive, experienced lawyers to defend you through the processes.

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