Unfair dismissal

Understanding dismissal claims

Broadly, there are two types of unfair dismissal claims which can be brought in the employment tribunal. Sometimes, both types of claim are issued at the same time, depending on the facts of the case.

Ordinary unfair dismissal

Employees can bring a claim for ordinary dismissal if they have been in continuous employment for two years or more on the effective date of termination (EDT).

Once an employee has established they had the right not to be unfairly dismissed, an employment tribunal will generally look to the employer to show that the reason, or principle reason, for dismissal was one of a list of the five potentially fair reasons for dismissal.

Fair reasons for dismissal are:

• Capability
• Conduct
• Redundancy
• Breach of statute
• Some other substantial reason

If the employer does establish a potentially fair reason for dismissal (for example, misconduct or even gross misconduct), the employment tribunal will then consider whether the claimant’s dismissal was fair or unfair. They will regard all of the circumstances of the case, including the size and administrative resources of the employer.

In doing so, the employment tribunal should not substitute its own view for that of the employer, but it should instead decide whether the employer’s actions fell within the range of reasonable responses of a reasonable employer.

Automatically Unfair Dismissal

Legislation provides protection for employees with regard to automatically unfair dismissal, when the reason for their dismissal is one proscribed by statutory provisions known as inadmissible reasons for dismissal.

Examples of such inadmissible reasons include making a protected disclosure (“whistleblowing”), asserting a statutory right, raising health and safety issues, or in connection with trade union membership or activity.

There are a number of key differences between ordinary unfair dismissal claims and automatically unfair dismissal claims. For example, there is no requirement for an employee to have accrued two years’ service.

In addition, the reasonableness test, as above, has no relevance in the context of automatically unfair dismissal.