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What is unfair dismissal?

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An employee has the right not to be unfairly dismissed by his employer under s94 of the Employment Rights Act (ERA)1996.

Firstly, you must establish whether the employee has been dismissed within the meaning of s95 of the ERA 1996. Dismissal occurs where the employer terminates the contract with or without notice, non-renewal of a fixed term contract or where the employee terminates the contract with or without notice in circumstances in which he is entitled to do so by reason of the employer’s conduct.

Assuming there is a dismissal, then the next step would be to look at the reason for the dismissal. There are a number of permitted fair reasons for dismissal under s98 ERA 1996. The fair reasons are capability or qualifications of the employee, conduct of the employee, redundancy, illegality or some other substantial reason of a kind to justify dismissal of the employee such as a reorganisation. If the dismissal is not for one of these reasons it will be unfair.

Even if it is for a fair reason, the employer must still follow a fair procedure according to the circumstances of the case including the size and administrative resources of the employer. The procedure to be followed depends on the reason for dismissal. There is an ACAS Code of Practice COP1 which demonstrates a fair procedure in conduct and capability cases. For redundancy cases a fair procedure is determined by the case law on redundancy and includes consultation. If there is no procedure or an unfair procedure is followed then it is normally an unfair dismissal.

Employees with requisite service have the right to complain of unfair dismissal before an Employment Tribunal (see post on claiming unfair dismissal).

Written by
Edward Aston
14th January 2014