What is unfair dismissal?

What is unfair dismissal?

Workplace Issues

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In its simplest form, unfair dismissal is when your employment contract is terminated and your employer did not have fair reason to do so. It can also be claimed if your employer did have fair reason but handled your dismissal using the wrong procedure. You are protected by law against both these eventualities.

Reasons for dismissal
There are five main reasons why you might be fired, according to the guidelines used by employment tribunals: Capability, Conduct, Redundancy, Breaking the Law and ‘any other reason'. Each includes a variety of factors, and the last is wide open to interpretation.

  • Capability - did you lie about your health or qualifications, or are you just plain incompetent?
  • Conduct - includes all sorts of misdemeanours, from theft of company property or information to abusive or racist behaviour, taking time off without permission, persistent lateness and much more.
  • Redundancy - employers must have a clear policy and stick to it. They are not allowed to make random redundancies or appear to have singled someone out for redundancy.
  • Breaking the law - is more clear-cut. Breaches of Civil or Criminal Law outside work hours may result in dismissal under the terms of gross misconduct or bringing the name of the firm into disrepute.
  • Any other reason - a catch-all to cover all the odd ways you might fairly be dismissed, including things like because an important client wants you fired. It also covers refusing to work with a particular colleague or with a certain piece of equipment. Deliberately wide in scope, it gives employers some protection against employees who are looking to get fired in order to bring, and hopefully win, a case for unfair dismissal.

A sixth reason not included above is known as ‘constructive dismissal'. This generally occurs when an employer gives you little choice but to resign due to intimidatory or abusive behaviour. This is very difficult to prove so make sure you gather as much evidence as possible before raising a case.

Proper dismissal procedures
There are right and wrong ways to fire someone. Most employers will be scrupulous in this regard, as they don't want to find themselves on the wrong end of an employment tribunal ruling.

The key thing is for your employer to follow a formal and reasonable procedure. This will almost certainly be contained in your terms of employment or employee handbook. Typical procedures will include verbal warnings, some documented attempt to resolve the situation, an opportunity for you to defend yourself, and written final warnings before your dismissal.

In the eyes of a tribunal, your employer must have given you fair indication of the problem, and then made a serious attempt to resolve it, in line with existing policies. They cannot, for example, use one rule for you and another for someone else. The only exceptions are in the case of ‘gross misconduct' where your employer would be within his rights to dismiss you on the spot, without warning.

What to do if you're the victim of unfair dismissal
If you choose to go to a tribunal, it's up to you to prove you have been unfairly dismissed, while your employer has to prove the opposite. You will need to take professional advice, either from your Trade Union, the Citizens' Advice Bureau or from an employment lawyer.

In defending themselves, your employer needs to:

  • prove they have followed proper procedure
  • prove they have not treated you as a special case
  • prove that you had previously been made aware of all company rules

You can only go to a tribunal if you have followed the company's normal procedure and still not achieved a satisfactory outcome. Because each side needs to demonstrate its case, you should keep copies of all correspondence, sent and received, as well as making notes of all actions and events surrounding your dismissal.