Unfair dismissal

Updating author: Max Winthrop

On this page:
Summary
Future developments
Practical example
Key references
Overview
Qualifying conditions
The requirement to be an employee
The requirement to have been dismissed
Minimum continuous service requirement
Circumstances in which the minimum service requirement does not apply
Effective date of termination
Employees excluded from the right
Previously excluded employees
Agreements preventing the pursuit of an unfair dismissal complaint
Reasons for dismissal
Fairness in the circumstances
Capability
Poor performance
Ill health
Misconduct
Redundancy
Inadmissible reasons for redundancy selection
Contravention of a statutory duty or restriction
Some other substantial reason
Retirement
Automatic unfair dismissal
Remedies
Compensation

Summary

• Under provisions now contained in part X of the Employment Rights Act 1996, an employee has the right not to be unfairly dismissed by his or her employer (s.94 of the Employment Rights Act 1996). (See Qualifying conditions)
• If a claim for unfair dismissal is brought, the employer has to establish that the reason for the dismissal is one of the designated reasons set out in the statute and, if it overcomes that hurdle, the employment tribunal will go on to consider whether the dismissal was fair in all the circumstances. (See Reasons for dismissal and Fairness in the circumstances)
• If the dismissal is found to be unfair, the tribunal will order the employer either to re-engage or reinstate the employee or, more commonly, to pay compensation. (See Remedies)
• An employment tribunal may increase or decrease awards of compensation by up to 25% in the event of an unreasonable failure to comply with the "Acas code of practice on disciplinary and grievance procedures". (See Overview)
• Compulsory retirement dismissals instigated on or after 6 April 2011 may amount to unfair dismissal under the Employment Rights Act 1996 and direct age discrimination under the Equality Act 2010. The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (SI 2011/1069), which came into force on 6 April 2011, removed retirement from s.98 of the Employment Rights Act 1996 as a potentially fair reason for dismissal. Retirement dismissals are likely to be considered as "some other substantial reason" dismissals and must be effected using a fair procedure. 

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Future developments

Removal of qualifying period for unfair dismissal claims over political opinions: Section 13 of the Enterprise and Regulatory Reform Act 2013 (1.05MB) (on the UK Legislation website), which received Royal Assent on 25 April 2013, will amend s.108 of the Employment Rights Act 1996 to remove the two-year qualifying period for unfair dismissal claims where the alleged reason for dismissal is the employee's political opinions or affiliations.