Unfair Dismissal
Fair dismissal
In order to dismiss someone fairly, in addition to an employer demonstrating that one of the 7 reasons exist to dismiss an employee, they also need to show that the decision was reasonable and that a fair procedure was followed.
In a redundancy dismissal, in order for that dismissal to be fair there would need to be:
- a genuine redundancy situation existing within the business (i.e. a business or workplace closing or relocating or an employer no longer needing as many employees to carry out a particular type of work); and
- a fair selection process carried out, with the employer following its redundancy policy if it has one.
There are only 7 ways you can be fairly dismissed from your employment:
- redundancy
- misconduct
- poor performance
- illness or injury leading to high levels of absence
- a lack of qualifications
- where continued employment would break the law (for example, on expiry of a work permit)
- for “some other substantial reason” (SOSR) under employment rights legislation.
Misconduct dismissal
In a misconduct dismissal, the employer would typically need to show that:
- it genuinely believed the misconduct had occurred based on a reasonable investigation;
- it had a disciplinary policy which made it clear that the conduct amounted to misconduct or gross misconduct;
- it followed the steps set out in its disciplinary policy, and
- the decision to dismiss was consistent with its approach to any other employees who may also have been found guilty of similar misconduct.
The three most common reason for dismissal are:
- Redundancy
- Misconduct
- Poor performance
Poor performance dismissal
In a poor performance dismissal, when assessing whether this was a fair reason for dismissal, an employment tribunal would consider:
In a redundancy dismissal, in order for that dismissal to be fair there would need to be:
- if it was reasonable for your employer to decide that your performance was below the standard reasonably required for the job;
- whether you had been given a reasonable opportunity to improve after it was brought to your attention;
- if your employer had a capability procedure, then had it been properly followed?
Some dismissals are considered in law to be automatically unfair. For example, if someone is dismissed because they were pregnant or had made a protected disclosure (“whistleblowing“).
Employees with 2 or more years’ service that have been unfairly dismissed are entitled to bring an unfair dismissal claim in the employment tribunals and claim damages for a statutory amount and loss of earnings.
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