UNFAIR DISMISSALS: Most employers follow Acas guidelines to dismiss staff ‘fairly’.

Even so, employees could still claim for unfair dismissal if they think:

• You gave them a false reason for the dismissal.
• The actual reason you gave them was not fair.
• You acted ‘unreasonably’ (e.g. failing to give proper warning).

All dismissal cases fall subject to a test of fairness and must follow a fair procedure. Those cases which do not are often ruled as being unfair.

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Automatically Unfair Reasons for Dismissal

What is classed as unfair dismissal? Despite acting ‘reasonably’ there are some dismissal reasons that get classed ‘automatically’ unfair. They relate most to these areas of employment:

• Matters of pregnancy (including all reasons that relate to maternity).
• Family matters. This includes parental leave, paternity leave, adoption leave, or taking time off for dependants.
• Acting as an employee representative or a trade union representative.
• Acting as an occupational pension scheme trustee.
• Pay and working hours. This includes the National Minimum Wage, annual leave, and the Working Time Regulations.
• Choosing to join or not join a trade union.
• Part-time employment or fixed-term.
• Discrimination Rights:
  • This includes protection against discrimination on the grounds of race, gender reassignment, age, marriage and civil partnerships, pregnancy and maternity, religion or belief, sex and sexual orientation:
    • (Includes political beliefs in Northern Ireland).
• Whistleblowing for employees.

Note: As a rule compulsory retirement (on the grounds of age) is unlawful unfair dismissal. The exception could be if you can ‘objectively’ justify it – but this could get challenged at a tribunal. Check out the full list of reasons for Unfair Dismissal ‘Automatically’.

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Dismissing Staff with a Disability

What happens if a disabled employee is unable to do their job? There are occasions where it may be fair for you to dismiss staff with a disability or illness. In most cases you would need to show that no reasonable adjustments can take place to keep them employed.

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Political Beliefs and Political Groups

Generally, it is not automatically unfair to dismiss staff because of their political beliefs. The same also applies if they belong with a political group. But, in some cases a tribunal might rule it as an unfair dismissal.

Note: The rules changed on dismissals due to political opinions or affiliation as of the 25th of June 2013. Since then, there is no qualifying period for someone going to an employment tribunal.

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Unfair Dismissal Penalties

There are penalties for employers who dismiss staff unfairly. If proven, a tribunal might order you to:

• Reinstate the employee and give them back their same job.
• Re-engage the employee which usually means giving them a different job.

In some cases, the tribunal may order you to pay compensation. As a rule the amount of compensation depends on the employee’s:

• Age
• Gross weekly pay
• Length of service

Failing to follow a tribunal order to reinstate someone often means paying extra compensation. But, there is an upper limit on the amount a tribunal can award for unfair dismissal.

Note: The exceptions would be cases relating to health and safety or whistleblowing. Thus, an employer would unfairly dismiss someone for taking action on workplace health and safety grounds.

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Eligibility to Claim Unfair Dismissal

Employees must work for a qualifying period to make an unfair dismissal claim. An exception would apply if they claiming for an automatically unfair reason.

Unfair Dismissal Qualifying Period

• Started Employment before 6th of April 2012: Employee can claim after first year of employment.
• Started Employment after 6th of April 2012: Employee can claim after two (2) years of employment.

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Cannot Claim Unfair Dismissal UK

The legal right to make a tribunal claim on unfair dismissal rules in the United Kingdom is not available to:

• Self-employed people and independent contractors.
• Members of the armed forces.
• Employees who reached a settlement with their employer through Acas or the LRA in Northern Ireland.
• Employees who reached a settlement with their employer through a ‘compromise agreement’ or ‘settlement agreement’ after taking legal advice.
• Employees employed under an illegal contract (e.g. under the age of 18 and working in a bar).
• Employees covered by a dismissal procedure agreement legally exempted from the unfair dismissal rules and due process.
• Employees taking part in unofficial industrial action (unless the dismissal is for an automatically unfair reason).
• Police staff (unless it relates to health and safety or whistleblowing).
• Workers on a fishing vessel who get paid by a share in the profits or gross earnings of the vessel.

Tribunals for unfair dismissals determine the facts known to the employer at the time of dismissing the employee. They also find out whether their response was reasonable. As a rule, compensation gets awarded for an unfair dismissal and made with two components.

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