Many workers who are dismissed feel that they have been dismissed unfairly. If you are in this situation, this factsheet should help you to decide whether you have a case for unfair dismissal which could be taken to an Employment Tribunal.

Who cannot claim Unfair Dismissal?

Not every worker who is dismissed can consider a claim of unfair dismissal. You cannot claim unfair dismissal for example if your contract with your employer is illegal because it is breaking the law in some way. Examples of illegal contracts are where young workers under 18 are working as bar staff; children under 16 are working for more than 2 hours on school days; or where someone is working on a “cash in hand” basis where the employer did not pay tax and National Insurance on  earnings and the employee knew that this was happening and went along with it.

You cannot claim unfair dismissal if the contract is “frustrated”, which means that some unforeseen event means that it is not possible for employment to continue. This could happen if an employee was sent to prison for example. Neither can you claim unfair dismissal if you are sacked in connection with a strike or lock-out, (unless your employer sacks some employees but not others in the same situation), or if you are sacked whilst taking unofficial strike action.

Who can claim Unfair Dismissal?

You must be an employee. Only “employees” can claim unfair dismissal, not “workers” in the wider sense of the word. You cannot claim unfair dismissal for example if you are self-employed; sometimes however employers tell workers that they are self-employed when they are not. See our factsheet ‘Self-employment’ for information on this. Normally agency workers are another group of workers who cannot claim unfair dismissal.

You must have at least one year’s continuous employment, unless you were dismissed for a reason which the law counts as “automatically unfair”, for example because of discrimination; for trade union activities; for raising health and safety concerns; for asserting one of a number of statutory rights such as the right to a written statement of main terms and conditions of employment; to a payslip; or redundancy rights.

You must be able to show that there was a dismissal, and this could happen in one of five ways:

1.         Your employer ends your employment with or without notice.

2.         You are on a fixed term contract which ends without being renewed.

3.         Your employer acts in such a way that you are forced to resign (this is “constructive dismissal'' and is covered in detail later in this factsheet).

4.         Your employer refuses to allow you back to work after maternity leave.

5.         Your employer gives you the choice of resigning or being dismissed, and you choose to resign. (This is not dismissal however if you agree satisfactory terms for leaving with your employer.)

Is the Dismissal fair?

“Fairness” has a specific meaning in law, and a dismissal for one of the following reasons may be a fair dismissal. Employers who are considering dismissing an employee must follow the ACAS code of practice in most cases; see our factsheet ‘Disciplinary and Dismissal Procedures’ for further information. Their own contractual procedure can be used as long as it contains the same basic steps as the statutory procedure.

Capability

The term “capability” relates to issues of skill, aptitude and health. Where an employer feels that an employee does not have the skills to do the work required, or is not reaching a high enough standard, then s/he could consider dismissing for that reason. However if reasonable steps are not taken by the employer to allow the employee chance to improve, then the dismissal would be unfair. Employers must follow the ACAS code of practice when dealing with issues of capability; see our factsheet Disciplinary and Dismissal Procedures. A Tribunal would usually expect the employer to be able to say what was expected of you, to show that you knew what was expected of you, to show that you were not capable of doing the job, and to have given you help and/or training to help you improve.

Dismissal because of sickness absence:

This is also a potentially fair reason for dismissal, but again certain procedures have to be followed. If you are off work on long-term sickness absence your employer would be expected to get medical reports on your condition. If you have frequent spells of short-term ill health your employer would normally be expected to give you warnings about improving your attendance before dismissing you. See our factsheet ‘Dismissal for Sickness’ for details of what is expected of employers.

Conduct:

Issues of conduct must be dealt with under the statutory disciplinary and dismissal procedure rules; in cases where the employee’s behaviour entitles the employer to dismiss on the spot there is a procedure which must be followed after the dismissal. Again, see our factsheet ‘Disciplinary and Dismissal Procedures’ for further information. Even if you are guilty of misconduct your dismissal may be unfair. For example, if you did something not very serious and your employer sacked you, a Tribunal might decide this was unfair because you should have been given a warning instead.

It is not possible to list all the things which might count as misconduct. Your employer may put some of them into the rules at work, such as absenteeism; abusive language; disloyalty; disobedience; drinking, using drugs; smoking; attitude; personal appearance; sleeping on duty; theft or dishonesty; violence and fighting. However other behaviour which is not listed in a contractual disciplinary procedure can also be classed as misconduct.

Redundancy:

This is another potentially fair reason for dismissal. Employers must follow a procedure when considering making redundancies; see our factsheet ‘Redundancy’ for more information. Sometimes however employers select people for redundancy unfairly, and if you have more than 12 months` service and feel that this is the case, you should take advice about whether you could claim unfair dismissal.

A statutory requirement:

Sometimes the law prevents employment continuing, for example if a person employed as a driver loses their driving licence, or if the government introduces a new law requiring employees in a particular profession to hold a certain qualification. You can be fairly dismissed if your employer would be breaking the law or a special rule by keeping you in employment. For example, employees with certain illnesses are not allowed to do certain jobs. If you did one of these jobs and got one of these illnesses, and were not likely to get better, your employer could fairly dismiss you.

Some other substantial reason:

There may be other reasons besides the ones listed above which a Tribunal would consider to be fair reasons for dismissal.  Examples of substantial reasons could be economic necessity, business reorganisation or third party pressure. This could happen where a contract cleaner or a security guard for example is dismissed because the company to whom they are contracted out does not want them on the premises for some reason. Employers are expected to give reasons if dismissing for a substantial reason.

Constructive Dismissal

Is when an employee resigns from their job because of their employer’s conduct. To claim constructive dismissal an employee must be able to show that the employer fundamentally breached the contract of employment. Minor breaches of contract do not count. Examples of fundamental breaches of contract include cuts in pay; late payment or non-payment of wages; change in job content and/or status; cut or increase in hours; breach of health and safety regulations; breach of trust and confidence. Some contracts include “flexibility” clauses which allow employers to make changes to them. Employees with flexibility clauses in their contracts would find it difficult to  claim that their contract had been breached if it allowed changes to be made, although the law expects employers to behave reasonably when using flexibility clauses.

Employees must also be able to show that they resigned their job because the employer breached their contract. Employees cannot plan to leave for some other reason such as another job, and then claim constructive dismissal as an excuse for resigning. Further, employees cannot claim constructive dismissal at a later date if they carry on working for their employer after a fundamental breach of contract unless they have objected to it in writing, and have told the employer they are working under protest. Employees must not wait too long after doing this, otherwise a Tribunal could decide that they had accepted the breach.

An employee considering resigning should first of all send a grievance letter to their employer. This can be done either before or after resignation, but it is better to do it beforehand to give the employer a chance to remedy the situation. Sometimes however this is not possible, for example in cases where the employer has threatened the employee. See our factsheet ‘Grievances” for guidance about this.

Even if you believe you have a case for claiming constructive dismissal, this does not necessarily mean that the Tribunal will agree with you. If your employer can prove that s/he acted reasonably in changing your contract, your claim may not succeed.

What you can do about Unfair Dismissal

If you believe you have been unfairly dismissed, and you meet the qualifying conditions for claiming unfair dismissal, you should take further advice before making a claim to Employment Tribunal. You should contact your trade union if you are a member, or your local Law Centre, or the Community Legal Services helpline on 08453 454345. You must make your complaint to the Tribunal within three months of the date you were dismissed. The Tribunal will investigate whether your employer acted fairly in dismissing you. If it finds in your favour it can order the employer to reinstate or re-engage you, and/or give you compensation.

Reinstatement or re-engagement

The Tribunal will only order your employer to take you back if that is what you want. Reinstatement means that you are treated as if you had never been sacked in the first place, and your employer should take you back in your old job without any break in your service. Re-engagement means that your employer is expected to take you on again in similar or other suitable work. If your employer refuses to reinstate or re-engage you when ordered to do so by a Tribunal, the Tribunal will award additional compensation.

Compensation

The Tribunal can give various forms of compensation:

• Basic award: This is calculated by a formula similar to that for working out redundancy pay, depending on your age and length of service.
• Compensatory award: For loss of earnings you may have suffered as a result of the dismissal.
• Special award If you were dismissed for a reason connected with trade union membership or activities and the employer does not reinstate or re-engage you when ordered to do so.

The Tribunal may reduce the amount of an award given to you if they think that you contributed to the dismissal by the way you acted.

This factsheet is a general guide only and not a statement of the law. You should take advice before taking any action.

If you need more information about pay and employment rights contact

Greater Manchester Pay and Employment Rights Advice Service

0161 839 3888 phone and answer machine

4^th Floor, Swan Buildings, 20 Swan Street, Manchester, M4 5JW

We provide telephone advice only and cannot see people face to face

Or visit our website

www.gmemploymentrights.org.uk

Trade Unions

Trade Unions help workers to get better pay and working conditions.

For further information contact us, or

North West TUC, Suite 506-510, The Cotton Exchange, Old Hall Street, Liverpool, L3 9UD

Tel: 0151 236 5432

Greater Manchester Pay and Employment Rights Advice Service is an independent research and information body funded by all local authorities in Greater Manchester

August 2010