An Employee and Employer guide to Unfair Dismissal (2024 edition)
Whether you are an employee who is concerned you have been unfairly dismissed, or an employer worried that an ex-employee may make a claim for unfair dismissal, this guide has been written to help you. Written by a specialist employment law solicitor, it will provide you with insightful advice and information to assist in determining your legal position and help you to consider your next steps.
Employment rights
Employees with less than two years service do not have as many employment rights as those who have two or more years of service and can simply be dismissed on notice. This would not be seen as an unfair dismissal unless it involves some of the reasons or protected characteristics listed within this article.
Section 98 of the Employment Rights Act 1996 details that an employee with more than two years’ service can only be potentially fairly dismissed for one of the following five reasons:
- Conduct – When the employee has done something or continues to do something that is inappropriate or unacceptable (misconduct).
- Capability – When the employee is not capable of doing their job due to various reasons such as lack of qualifications or long-term illness.
- Redundancy – When the job is no longer needed. For example due to reorganising or restructuring of a business.
- Statutory Restriction – When the employee cannot do their job legally, such as a professional driver losing their driving licence.
- Some other substantial reason (SOSR) – a term used for a wide variety of situations not captured by the other four fair reasons such as personality clashes.
Misconduct
Misconduct dismissal is a common fair reason cited by an employer when dismissing an employee. Misconduct can include a variety of things and is further broken down into minor misconduct and gross misconduct.
Minor misconduct has been found to include:
- An act of inappropriateness on a minor scale
- Minor insubordination
- Failure to complete work on time
- Not following procedures properly
Acts of gross misconduct have been found to include:
- Physical violence
- Bullying
- Harassment
- Serious insubordination
To ensure it is not an unfair dismissal, the employer must:
- Follow a fair disciplinary procedure prior to reaching the decision to dismiss; and;
- Be able to show that the decision to dismiss was a reasonable decision for it to make in all the circumstances. This usually includes giving at least one warning, except in cases of gross misconduct.
If the employer fails to deliver on the above, it could potentially be considered an unfair dismissal.
If an employee who has two or more years of service is not dismissed for a fair reason, they have the right to bring a claim for unfair dismissal. Two years’ service is not required for automatic unfair dismissals or discrimination claims.
Automatically unfair dismissals
Examples of dismissals that would be classed as automatically unfair dismissals include any reason connected to:
- Acting as a trade union representative
- Acting as an employee representative
- Acting as an occupational pension scheme trustee
- Being a part-time or fixed-term employee
- For asserting, or trying to assert, a statutory right
- For making a protected disclosure, i.e., “whistleblowing”
- For taking action at work on health and safety grounds
- For taking part in protected industrial action
- For undertaking jury service
- Joining or not joining a trade union
- Working hours and pay, including the Working Time Regulations 1998, annual leave and the National Minimum Wage
- Pregnancy, including all reasons relating to maternity
- Taking or seeking to take leave for family emergencies or taking time off to care for dependants
- Taking leave for family reasons, such as statutory paternity leave, adoption leave or shared parental leave
From the above list of automatically unfair reasons, as an employment law team, we tend to see more protected disclosure and whistleblowing claims.
Protected disclosures
To qualify for protection, a person must have a “reasonable belief” that a wrongdoing has occurred, or is likely to incur, and that it is not in the public interest. It is not necessary for the wrongdoing to have actually occurred, but that the person believes it to be true. Whistleblowing usually shows one or more of the following:
- A criminal offence has been committed, is being committed or is likely to be committed,
- A person has failed, is failing or is likely to fail to comply with any legal obligation,
- A miscarriage of justice has occurred, is occurring or is likely to occur,
- The health or safety of any individual has been, is being or is likely to be endangered,
- The environment has been, is being or is likely to be damaged, or
- Information tending to show any matter falling within any one of the above points is being or is likely to be deliberately concealed.
Discrimination claims
The Equality Act 2010 (EQA 2010) provides people with protection from discrimination because of, or linked to, a protected characteristic, without the need for two years’ service.
The protected characteristics are:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
If you are concerned about unfair dismissal or discrimination, it is helpful to know the four main types of discrimination:
- Direct discrimination – This means treating an individual worse than another person because of a protected characteristic. For example, an employer purposely refuses to promote an elderly employee because the employer thinks that a person becomes less capable with age.
- Indirect discrimination – This can happen when an employer puts a practice, policy or criterion in place which has a worse impact on someone with a protected characteristic than someone without one. For example, a woman is forced to leave her job because her employer operates a practice that staff must work in a shift pattern which she is unable to comply with because she needs to look after her children at particular times of day.
- Harassment – An individual must not be treated in a way that violates their dignity or creates a hostile, degrading, humiliating or offensive environment. For example a manager makes offensive comments and racial slurs against an employee who is of a different race to the manager.
- Victimisation – An individual must not be treated unfairly for taking action under the EQA 2010 or supporting someone else who is doing so. For example, an employee makes a complaint of sexual harassment at work and is dismissed as a consequence.
Disability discrimination
For the protected characteristic of disability, the EQA 2010 also provides the following protection:
- Not to be treated unfavourably because of something arising from their disability. For example, an employee has cancer and needs time off for hospital treatment. Their manager subjects them to the company’s capability procedure for “too much absence”. This results in the employee receiving a warning hampering their right to apply for a promotion.
- Failure to make reasonable adjustments. Reasonable adjustments are changes an employer makes to remove or reduce a disadvantage related to someone’s disability. Employers must make reasonable adjustments by law, however, what is deemed a reasonable adjustment depends on the situation. An example of a reasonable adjustment could be providing an employee a designated car parking space (usually for senior management only) which they would not be entitled to under the employer’s car parking policy. Deviating from the car parking policy for an employee with mobility issues would likely be deemed as a reasonable adjustment to the employer’s car parking policy.
Please note that each of the above points in this article is a very basic summary only and each type of claim or discrimination is subject to their legal tests.
There is a lot of information in this article that should hopefully help you differentiate between a fair and unfair dismissal. Employment is often a complex area of law and that is why you need experienced employment law solicitors on your side.
GA’s employment solicitors in Plymouth are ranked in The Legal 500 and have years of experience in a wide range of contentious and HR-related employment issues. Contact the team today for a no-obligation discussion. Call 01752 203500 or email me directly via kayleigh.arthurs@GAsolicitors.com.
You can also read our guidance on settlement agreements for employees here and on settlement agreements for employers here.
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