Unfair Dismissal

The law relating to Unfair Dismissal

Section 94 of the Employment Rights Act 1996, provides that an employee who has been employed for more than 12 months has the right not to be unfairly dismissed.

The first burden on an employee alleging that he was unfairly dismissed is to show that there was in fact a dismissa

Some dismissals which breach statutory rights are automatically unfair:
· pregnancy dismissals;
· dismissal in connection with parental leave;
· dismissal in connection with time off for dependants;
· health and safety dismissals;
· dismissal for assertion of a statutory right;
· unfair selection for redundancy;
· dismissal for trade union membership and activities;
· dismissal in connection with a transfer of an undertaking;
· dismissal in connection with working time; and
· dismissal in connection with the right to the minimum wage.

Some dismissals are potentially fair:
· misconduct;
· redundancy; but see the section on redundancy
· incapacity (covering both illness and inability);
· to avoid unlawful activity (e.g. loss of driving licence); .
· Corruption, including taking bribes.
· Being drunk at work.
· Taking drugs at work.
· Abusive behaviour.
· Leaking confidential documents or information.
· Hacking into computer files, this includes stealing passwords.
· Being absent from work on a regular basis.
· Being constantly late for work.
· Wearing unsuitable work clothes or bad appearance.
· Taking holidays without informing the employer.
· Unsuitable conduct with other members of staff during office hours.
· Unsuitable conduct outside work hours that has an impact on the employer’
· Insulting behaviour towards employer.

All of the above may be persistent behaviour for which an employee has received earlier warnings or they may be individual incidents that are of a serious nature.

The right to claim unfair dismissal does not apply to those subject to the following exclusions:
· the armed forces.
· exclusions by agreement;
· diplomatic immunity;
· illegality;
· industrial action;
· mariners;
· national security;
· non-employees;
· normal retirement age;
· police;
· share fishermen;
· state immunity;
· those working abroad.

Even where the dismissal is potentially fair, the employer is obliged to thoroughly investigate and deal with the dismissal fairly, and in accordance with proper procedures. Thus a dismissal which might have been considered fair can be rendered unfair if not properly and fairly investigated.

In order to qualify to claim unfair dismissal an employee must normally have been continuously employed for 12 months at the date of dismissal. However, there are exceptions to this rule such as claims based on dismissals for ‘asserting a statutory right’ or for whistleblowing.

All claims for unfair dismissal must be brought to an industrial tribunal within 3 months.

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