Employment law – Unfair dismissal

What is unfair dismissal?

As set out in the Employment Rights Act 1996, every employee (who has the relevant qualifying period of service) has the legal right not to be unfairly dismissed.

In the case of a dismissal, the onus is on an employer to show that the reason(s) for dismissing an employee falls into one of the categories set out in the Act.

The categories for dismissal are as follows:

• The employee lacked the proper capability or qualification(s) that they were expected to have as part of their employment and/or role

• The dismissal was as a result of the conduct of the employee (this could be things such as poor attendance, failure to follow instructions, dishonesty etc.)

• There was a genuine redundancy of the post

• The continuation of an employee’s employment would contravene a statute, for example if you need to drive as part of your role, but you have been banned due to a motoring offence etc

• Some other substantial reason – this covers various genuine additional business reasons for the dismissal.

Unless an employer can prove one (or more) of the above fair and valid reasons for dismissal, then the termination of employment will be deemed to have been unfair within the Employment Rights Act 1996, and the individual will potentially have a valid claim against the unfair dismissal.

To protect employees further, and where an employer does prove that the dismissal comes under one of the above categories, it is still up to the Employment Tribunal to decide “in accordance with equity and the substantial merits of the case” whether the dismissal was actually fair or not.

The Employment Tribunal will need to decide whether the employer delivered a “reasonable response” in the dismissal, in other words, the Tribunal will need to decide whether the dismissal was reasonable and whether the employer acted reasonably in treating that reason as a sufficient reason for dismissing you.

So for example an employer could dismiss an employer on the grounds of poor performance, but if the Tribunal believe that another employer wouldn’t have dismissed the individual in the same circumstances then the dismissal may still be deemed unfair. The Employment Tribunal will often take other factors into account – such as the size and administrative resources of the employer.

You can find more information on our Wrongful/Unfair Dismissal page.

If you believe that you have been the victim of an unfair dismissal then we can help you claim your compensation (on potentially a no win, no fee basis). Call us now on 0844 499 9302 or email employ@michaellewin.co.uk to make a claim, or alternatively click here to start your claim.

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