Unfair Dismissal Claims – Q and A

Here are some common questions about unfair dismissal and my answers to them.

Q – What is unfair dismissal?

A – Dismissals are classed as ‘automatically unfair’, regardless of the reasonableness, if an employee is exercising their rights related to the following:

  • Pregnancy, including all reasons relating to maternity
  • Family reasons, including parental leave, paternity leave, adoption leave or time off for dependants
  • Representative and trade union membership grounds and union recognition
  • Discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation
  • Pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage.

Q – When is a dismissal fair?

A – Dismissal is normally fair if an employer can show that it is for one of the following reasons:

  • A reason related to an employee’s conduct
  • A reason related to an employee’s capability or qualifications for the job
  • Because of a redundancy
  • Because a statutory duty or restriction prohibited the employment being continued
  • Some other substantial reason of a kind which justifies the dismissal.

Q – How do you dismiss employees?

A – The key points to remember are:

    • Dismissing employees should be the last resort and employers should carry out necessary investigations without unreasonable delay to establish the facts
    • Employers should use a fair and consistent procedure when dismissing employees
    • It’s always best to try to resolve any issues informally first
    • Employees have the right not to be unfairly dismissed
    • Set out in writing your rules and procedures for handling disciplinary procedures
    • Make sure employees and managers understand the rules and procedures for disciplinary issues.

Q – When can an employee make a claim about unfair dismissal?

A – In most circumstances employees will need to qualify before they can make a complaint to an employment tribunal. They need:

  • At least one year’s continuous service for employees in employment before 6th April 2012
  • Two years for employees starting employment on or after 6th April 2012.

Q – How do you avoid costly mistakes?

A – Before thinking about dismissing an employee, stop and think – are you doing the right thing? To make sure that you comply with the law and don’t make any costly mistakes, whether you’re an employee or an employer, get the right advice.