I Think I’ve Been Dismissed Unfairly

When a person is dismissed from their employment, the process must be both fair and legal or it will be deemed unfair dismissal; even if the dismissal was justified.

What Does Unfair Dismissal Mean?

The term “unfair dismissal” is used to cover four main situations where a person is fired illegally while in a protected position:

• The employer’s failure to adhere to the statutory disciplinary procedure;
• Any dismissal the law deems “automatically unfair”;
• A person being dismissed for exercising, or wishing to exercise, a statutory right; and
• Any other reason the Tribunal deems is unfair.

The Statutory Disciplinary Procedure

Following the enactment of the Employment Act 2002 there has been a standard disciplinary procedure in English law, which requires a clear procedure is to be followed when a person is fired. It is acceptable for employers to expand on this process to grant employees more rights but they cannot reduce or otherwise atrophy the rights granted under statute.

Whether they expand on the statutory process or not, employers are required to make their disciplinary procedure available in writing.

The Employment Act 2002 outlines the following disciplinary process for when a problem arises:

1. A written statement must be issues to the employee. This should give details of the problem that has caused the disciplinary process to be undertaken, and must invite the employee to a meeting where they can discuss the matter.
2. Hold a meeting where the problem can be discussed. The employee must be allowed to have a colleague or union representative present, and the meeting must only be held after a reasonable amount of time has passed, to give the employee time to consider their response.
3. After the meeting, the employee must be informed of the employer’s decision. If the decision is not in the employee’s favour, they must be informed of their right to appeal.

Not Everyone is Protected From Unfair Dismissal

Unless a person is dismissed for an automatically unfair reason, they cannot claim unfair dismissal unless they: are an employee (which is poorly defined in law); they have actually been dismissed (which can be difficult to prove in cases of constructive dismissal); and they have been employed continuously for no less than one year at the date of dismissal.

When is Dismissal Fair?

Employment law in England and Wales recognises the fact that sometimes it is necessary to dismiss an employee, and therefore grants protection to employers from unfair dismissal in specific circumstances. However, it should be noted that even where the dismissal could be called fair in law, an employee may still have a case for unfair dismissal if the procedure followed to fire them incorrect.

The reasons the law deems fair for a person to be dismissed are where:

• there is an unresolvable personality clash;
• the employee is continually late for work;
• the employee is incompetent and retraining is ineffective or impossible;
• the employee has been imprisoned; and
• the business changes location, the employee is unwilling to relocate and there is no ‘relocation clause’ in their contract.

Automatically Unfair Dismissal Reasons

Dismissal of an employee because of their sex, sexuality, religion, age, race or gender reassignment (whether real or imagined by the employer or other employees) is automatically unfair in law. In some rare cases it is possible to argue that the position has a genuine occupational requirement that the employee would not be able to fulfil, but this is not possible in the vast majority of cases.

The various statutes in employment law state that the following cases are also likely to be automatically unfair, so care should be taken where an employee’s dismissal procedure falls into these categories:

• Undertaking certain trade union activities;
• Exercising, or wishing to exercise, a statutory right or duty, such as parental leave or jury duty;
• Exercising health and safety regulations, or requesting they be exercised;
• pregnancy; and
• being, or being suspected of being, a whistleblower.

Where a case of automatic unfair dismissal arises, protection is not limited to employees with a year or more on their service record. Protection begins from the interview process onward, and employers are required to treat potentially troublesome situations with care if they wish to avoid liability.

Unfair dismissal is an umbrella term for a variety of protections that seek to address the growing problem of discrimination and malpractice in the workplace. It covers a vast array of situations and while it can seem complex at first, it is merely a remedy to the problem of poor employer-employee relations that is easily avoided by care, due diligence and treating everyone fairly.