Unfair Dismissal

What is unfair dismissal?

An employee with the sufficient qualifying service can bring a claim for unfair dismissal in certain circumstance.  Employees who started work before 6th April 2012 need to have been employed for 1 year. Employees who started work on or after 6th April 2012 must have been employed for 2 years in order to bring a claim for unfair dismissal.

It is usually obvious to both an employer and an employee when an employee has been dismissed but an employee may also claim unfair dismissal where a fixed term contract expires but is not renewed, or where an employee has reason to resign because of the conduct of the employer (constructive dismissal).

Fair or Unfair Dismissal?

For an employer to dismiss an employee fairly the employer must show that they had a valid reason for dismissing the employee and that they acted reasonably in treating that reason as a sufficient reason for dismissing the employee.

Potentially Fair Reasons

A number of reasons are potentially fair and enable the employer to dismiss the employee, these are:

  • Conduct
  • Capability
  • Redundancy
  • Legal Requirement
  • Some other substantial reason

However if the employer does not follow a fair and reasonable procedure in dismissing an employee, then even if they have a fair reason for dismissal, the dismissl may still be unfair.

Automatically Unfair Dismissals

In some circumstances a dismissal is unquestionably unfair:

  • Dismissal on grounds of Trade Union participation
  • Dismissal on the grounds of pregnancy or maternity
  • Dismissal on the transfer of an undertaking
  • Dismissal relating to various other characteristics which are protected by law e.g. race, disability
An employee bringing a claim which they allege to be automatically unfair may not need to have a qualifying period of service. This depends on the nature of the claim.

Reasonable Procedures

An employer must act reasonably in all the circumstances in treating the reason for dismissing the employee as a sufficient reason for the dismissals.  Employers are under a duty to follow a fair and reasonable procedure in line with the ACAS Code of Practice on disciplinary matters when disciplining and/or dismissing an employee.  The purpose of the Code is to make sure all employees are treated fairly.

Compensation

An employee who is successful in an unfair dismissal claim will be able to claim compensation flowing from the dismissal.  They will be entitled to a basic award which is based on their earnings, age and the number of years they have been in employment, and a compensatory award, which will be made up of their loss of earnings, future loss of earnings, pension loss and reasonable expenses incurred by them as a result of the dismissal.

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Bhayani Bracewell are a firm of specilaist employment law solicitors based in Sheffield and Doncaster.

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Bhayani Bracewell, Fountain Precinct, Balm Green, Sheffield, S1 2JA
t. 0114 272 1884    hello@BhayaniBracewell.co.uk

Doncaster Office: 17-23 Thorne Road, Doncaster, South Yorkshire, DN1 2RP

Partners - Mark A Beresford, Sharon M Beck, Alison A V Kitchman, Peter H Caswell
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