When it comes to the firing of employees, there must be a reasonable reason behind the dismissal of any member of staff. Without a fair reason, your previous employee can challenge your actions and appeal your decision on the grounds of unfair dismissal.
For both employers and employees, understanding what constitutes unfair according to UK law is crucial. Whether you are looking to restructure your staff, reduce your payroll, or have concerns about the way you were dismissed, this guide will help you understand what qualifies and what to do next.
According to UK Law
Whether an employee is sacked, fired or let go, regardless of the terminology, the employer must have reasonable grounds to terminate the contract.
Section 94 of the Employment Rights Act 1996 states that a member of staff, by right, cannot be unfairly dismissed by an employer. The legislation then goes on to detail that if an employer does not provide a good reason for ending a contract, and does not follow their business’ formal disciplinary procedure, an employee may have been unfairly dismissed.
If the employee has two years of service, they can make a claim for unfair dismissal.
Automatic Unfair Dismissals
Some reasons for terminating employment are automatically deemed as unfair, especially if they are the sole basis for a dismissal.
If an employee has
- Made a request for flexible working arrangements
- Held onto their working time rights, e.g. rest/tea breaks
- Handed in their resignation with the correct period of notice
- Signed up for a trade union
- Joined in with legal industrial strikes and action lasting up to 12 weeks
- Required time for jury service
- Made an application for the entitled adoption, maternity or paternity leave
- Been off work due to adoption, maternity or paternity leave
- Enforced their right to Working Tax Credits
- Played a part in any whistleblowing in the business
- Been forced to take retirement, known as ‘compulsory retirement’
They may have a case of automatic unfair dismissal. In these instances, the next steps are for the employee to appeal their dismissal. There is no requirement for them to have two years of service to make a claim for one or more of the above reasons. Any dismissal that disregards an employee’s statutory working rights is often automatically considered unfair. However, the dismissed person must be an employee and not a self-employed worker.
As an employer, familiarising yourself with the fair reasons to dismiss an employee is a must. Read our guide to fair dismissals to help maintain your business’ reputation and avoid expensive legal action.
Avoiding Unfair Dismissals
To avoid the possibility of unfair dismissals arising, businesses should ensure all staff receive the same fair treatment and are well-informed on all employment procedures and policies. Making this a part of staff onboarding or training will ensure there is a record that a member of staff was made aware of the business rules. Ultimately, doing so will help protect an employer.
It is recommended to incorporate the following into a company process:
- Ensure all employees are provided with copies of all policies and procedures
- Document all the actions of any event that may trigger a tribunal
- Record and keep copies of all correspondence
However, should an issue arise, steps should be taken to find a resolution through a company’s disciplinary process. These often begin with an informal chat to make the employee aware of any concerns, before escalating to an internal investigation, disciplinary hearing and sanctions.
It is worth remembering that no employee is exempt from these processes, no matter how senior. All members of staff must be kept to the same standards and rules.
The Difference Between Constructive Dismissal
Another way a dismissal can be considered unfair is when an employee feels the need to terminate their contract due to their employer’s actions. When a member of staff feels they have no option but to resign, their dismissal may be seen as a constructive unfair dismissal as stated in Section 95(1)(c) and Section 136(1)(c) of the Employment Rights Act.
Examples of an employer’s conduct can include:
- Failure to pay employees
- Demoting a member of staff without reasonable cause
- Forcing unacceptable changes to hours and working conditions, e.g. switching to night shifts
- Bullying and harassment
What are Wrongful Dismissals?
A wrongful dismissal, however, is when an employer ends a contract but breaches the conditions. Most cases are when errors have been made regarding an employee’s notice period or their pay during their notice.
Similar to automatic unfair dismissals, there is no requirement for an employee to have two years of service.
Making A Claim For Unfair Dismissal
The first step of the process is for an employee to recognise whether their dismissal is unfair. If they were on the payroll as an employee and have the required number of years of service, they can appeal the decision.
If the appeal with the employer is unsuccessful, it is possible to take the claim further to an employment tribunal. It is worth noting, these claims must be made within one day less than three months from the date the employment was terminated, as stated in Section 48 of the Employment Rights Act. Where notice was served by the employee, this date is the last day of this period.
Employers are expected to provide an employee with a clear appeals process.
Discrimination Concerns
If an employee feels the reason they were fired is due to their gender, sexuality, race or another protected characteristic, their claim may be considered discriminatory. Seeking legal assistance is paramount as, not only can a claim be made for unfair dismissal, but a complaint can also be made for discrimination.
Employee Compensation
Businesses can be forced to pay compensation as high as one year’s salary or £93,878 (if you were dismissed after 06 April 2022), whichever is lower. Therefore, for an employer to successfully defend their decision to dismiss, a genuine reason must be presented with records of evidence. In cases when someone has lost their job due to whistleblowing or health and safety reasons, the compensation can be much higher. Similar is also true if the dismissal is found to be for discriminatory reasons.
Legal Support
Whether you have been dismissed or are looking to let a member of staff go, stop and ask the question, is this fair? Think about what constitutes unfair dismissal and the consequences, as an employer, of getting this wrong.
Regardless of what side of unfair dismissals you find yourself on, our experienced Employment Law solicitors are on-hand to provide legal guidance and representation throughout the process. From assistance in presenting your case to recommendations on how to respond, we are here to help. Contact us today for more information by sending an email to info@witansolicitors.co.uk.
