If an employer is dismissing an employee, there is always the potential for the employee to claim that the dismissal is unfair. Simply telling an employee “you’re fired” in real life may well result in the employee heading straight for the Employment Tribunal.

Unfair dismissal

How can an employee be dismissed fairly? There are five reasons for dismissal which are potentially fair

  • conduct
  • capability and performance
  • redundancy
  • breach of statutory restriction
  • some other substantial reason.

Not only must the reason for dismissal fall into one of these categories, the employer must also follow a fair procedure and act fairly and reasonably even in the face of an obvious case of gross misconduct.

Generally an employee must have been in employment for two years’ in order to be able to claim for unfair dismissal. However, there are circumstances in which an employee with less than two years service can bring an unfair dismissal claim including

  • health and safety
  • pregnancy related
  • working time regulations
  • rights whistleblowing.

Wrongful dismissal

An employer must also comply with the notice provisions in the employee’s contract (and the notice must be at least as long as statutory notice periods) otherwise they may face a claim for wrongful dismissal.

Constructive unfair dismissal

An employer is not off the hook if the employee resigns. If the employer has fundamentally breached the employee’s contract of employment then the employee could resign and claim constructive unfair dismissal.

Bringing a claim to an Employment Tribunal

Employees must apply to ACAS for early conciliation before being able to bring a claim in the Employment Tribunal. There are strict time limits but early conciliation can result in an extension of the normal three month time limit for bringing a claim in the Employment Tribunal.

We can guide you through the process, helping you to avoid the common pitfalls.

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