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Unfair dismissal

Stephen SimpsonEditor's message: The right not to be unfairly dismissed is probably the most important statutory right that employees have.

To prevent your organisation falling foul of the legislation, you need to remember that there are only five fair reasons for dismissal - conduct, capability, redundancy, contravention of a statutory duty/restriction, and some other substantial reason. Before dismissing an employee, you therefore need to make sure that you have a potentially fair reason. However, you also need to be able to show that you acted reasonably in treating the reason as sufficient for dismissal, and that you followed a fair process. In a redundancy situation, the latter would include ensuring proper consultation and selection procedures, while a misconduct or performance dismissal would require sufficient warning (in most cases), proper investigation and evidence, and the right to be accompanied at hearings.

Be aware too that there are some reasons for dismissal that are automatically unfair, including where a dismissal is connected to rights around working time, family-friendly leave or the minimum wage. And, while an employee must normally have at least two years' service to bring an unfair dismissal claim, in the majority of areas of automatically unfair dismissal, this minimum service requirement does not apply.

There is no doubt that the tribunal fees regime resulted in a drastic reduction in the number of unfair dismissal claims. However, initial figures following the removal of tribunal fees have shown a dramatic increase, and employers should expect this upward trend to continue.

Stephen Simpson, principal employment law editor

New and updated

  • Cases on appeal

    Type:
    Law reports

    Updated to reflect that the Court of Appeal will not hear the appeal in Awan v ICTS UK Ltd because the parties reached a settlement.

  • Unfair dismissal

    Type:
    Employment law manual

    Updated to include information on Royal Mail Group Ltd v Jhuti, in which the Supreme Court considered the knowledge of the decision-maker in a dismissal.

  • Whistleblowing dismissal claims: Supreme Court rules on knowledge of decision-maker

    Date:
    28 November 2019
    Type:
    Law reports

    In Royal Mail Group Ltd v Jhuti, the Supreme Court held that, where a dismissal for making protected disclosures is hidden behind an invented reason that is adopted by the decision-maker, the reason for the dismissal is the hidden reason rather than the invented one.

  • Disciplinary investigations: "Flawed" process led to constructive dismissal

    Date:
    19 November 2019
    Type:
    Law reports

    In Retirement Security Ltd v Wilson, the Employment Appeal Tribunal held that the employer's "flawed" disciplinary investigation entitled the claimant to resign and successfully claim constructive dismissal.

  • Employee "blackmailed" into signing restrictive covenants was unfairly dismissed

    Date:
    19 November 2019
    Type:
    Law reports

    In Ward v Fiducia Comprehensive Financial Planning Ltd, an employment tribunal upheld a claim for constructive unfair dismissal, finding that the employer had put inappropriate and excessive pressure on the employee to agree to an extended restrictive covenant following his resignation.

  • Settlement discussions admissible in pregnancy and maternity discrimination case

    Date:
    15 October 2019
    Type:
    Law reports

    In Stolk v Hunts Foodservice Ltd and another, an employment tribunal awarded the claimant £11,028 after finding that pre-termination negotiations were admissible as evidence of pregnancy and maternity discrimination.

  • Working time: Threat to dismiss was unlawful detriment

    Date:
    3 October 2019
    Type:
    Law reports

    In Pazur v Lexington Catering Services Ltd, the Employment Appeal Tribunal held that a kitchen porter had been subjected to a detriment when he was threatened with dismissal after he refused to return to work following a breach of his right to a rest break.

  • Unfair dismissal awards 2018/19

    Type:
    Quick reference

    A table listing the unfair dismissal awards made by employment tribunals in 2018/19.

  • Constructive dismissal: Suspension breached implied term of trust and confidence

    Date:
    3 September 2019
    Type:
    Law reports

    In Upton-Hansen Architects Ltd v Gyftaki, the Employment Appeal Tribunal upheld the tribunal decision that the employee's suspension was in breach of the implied term of trust and confidence. The employee was constructively dismissed and, in the absence of a potentially fair reason, the dismissal was unfair.

  • Unfair dismissal: Covertly recording meeting was not gross misconduct

    Date:
    16 August 2019
    Type:
    Law reports

    In Phoenix House Ltd v Stockman, the Employment Appeal Tribunal upheld the tribunal decision that the covert recording of a confidential meeting was not a breach of the implied term of trust and confidence. The EAT gave guidance on the factors that may justify such a recording.