The potentially sensitive and difficult issue of unfair dismissal is at the forefront of UK Employment law as a subject which is equally important for both employee and employer as a law but also it’s propensity to be misunderstood. Indeed it’s the name alone which can be misleading e.g. an employee who may take on an employer after a dismissal are not if fact challenging the fairness of the action of being dismissed but in fact in many cases are pursuing the fact that many ‘fair’ dismissals involve unfair conduct i.e.: – rather the employee would be challenging the reasonableness of the employer’s conduct as viewed against the hypothetical concept of a “reasonable employer acting reasonably.”
So if you feel you have been subject of an unfair dismissal it is important to navigate round several processes and here is the sequence that is likely to occur:
- Prior to legal action ,the individual(employee) bringing the claim must be working under a contract of employment and owes and is owed various duties and responsibilities by the person from whom they receive pay or remuneration. NB: The self employed and those without contract of employment, are excluded.
- In all cases which do not involve a dismissal for asserting a statutory right, the employee must have one year’s continuous employment (worked for one year without a break of more than 2 weeks without remuneration under a contract of employment).
- The employee must show that there has been a dismissal- this can be either an express dismissal by the employer or it could, (but only in cases where the employee is within their rights resigned in response to an employer’s breach of contract) be classed as a constructive dismissal.
- The next stage is where the employer has to show a pivotal reason for dismissal of the employee and will attempt to show that the reason for dismissal is under the auspices of the Employment Rights Act (ERA) S98(2). This section contains a category of prima facie fair reasons and providing that they have a reasonable belief in that reason the fifth step is now taken. The tribunal will then move to the last step in the process.
- The tribunal (court) will then assess how reasonable the employer has been within the merits of the particular case- employer’s conduct with regard to the equity and substantial merits of the case. These will encapsulate the employee’s employment; time served, training and development , ACAS codes of practice, past conduct etc.
- It is then up to the court to arbitrate on whether the employer’s conduct in the case in dismissing the employee fell under what are reasonable grounds and whether the employer had acted reasonably. It is important to not though that the court will not create or substitute its own actions on what it deems as reasonable for that employer.
Rather more the sitting tribunal members – a judge and two lay tribunal members employee representative and an employer representative to help to determine what reasonable employers would do.
Unfair dismissal is a complex and transient area of employment law which is in a state of flux due to the fact that it is updated on a near weekly basis due to updating of precedents .So because of this it is important to seek legal assistance from the outset.
