Unfair Dismissal | Making a claim

Any claim for Unfair Dismissal must go through a 2 stage test.

1. Was the dismissal for a fair reason?

And if the dismissal was for a fair reason

2. Was the dismissal dealt with fairly?

This means that an employer can dismiss an employee for a perfectly valid reason, but the way in which the dismissal was handled was unfair, and so an unfair dismissal claim can be made.

All employers should have a written Grievance and Disciplinary Policy that should be followed whenever disciplinary action is taken against an employee, particularly where that action results in dismissal.

Reasons for Dismissal
The following is a list of fair reasons for dismissing an employee and points that an Employment Tribunal will consider.

1. Capability
This is split into several areas.

Qualifications - does the employee have the necessary qualifications for the job and is a particular qualification needed for this type of job?

Incompetence - this can be repeated incompetence or a severe individual incident but was the employee trained, were warnings given?

Health - an employee who is genuinely ill on a regular basis, what was the illness, how long would the employee be off, did the employer consider alternative work for the employee?

2. Conduct
Here are some of the possible situations where an employee's conduct may have given the employer a good reason to dismiss them:

  • Theft
  • Corruption, including taking bribes
  • Being drunk at work
  • Taking drugs at work
  • Abusive behaviour
  • Leaking confidential documents or information
  • Hacking into computer files, this includes stealing passwords
  • Being absent from work on a regular basis
  • Constantly late for work
  • Unsuitable work clothes or appearance
  • Taking holidays without informing your employer
  • Unsuitable conduct with other members of staff during office hours
  • Unsuitable conduct outside work hours that has an impact on the employee's job
  • Even telling your employer exactly what you think of them

All of the above may be persistent behaviour for which an employee has received earlier warnings, or they may be individual incidents that are of a serious nature.

The tribunal will also consider the following:

a) Was the conduct of the employee looked into thoroughly?

b) Did the employer believe that the employee committed the offence?
The employer does not need absolute proof in a case of dishonesty, but there must be strong evidence of the dishonesty for them to dismiss the employee.

3. Redundancy
The employer must have a fair procedure for selecting who is going to be made redundant. Once the method has been decided upon the employer must stick to it.

An employer cannot select an employee for redundancy if it is based upon one of the Unfair Dismissal Exceptions. Please refer to the Redundancy section.

4. Breaking the Law
For example, a foreign worker whose work permit has expired, to continue to employ them would break the immigration laws. However, the employer should check whether the situation can be made legal before dismissing the employee.

5. Any Other Reason
This is very wide and is used to cover virtually every other possible reason. For example, where a business is being reorganised, and some employees refuse to reorganise along with it or where they are no longer considered suitable. For example, an employee who refused to use computers when they were installed despite training was dismissed, this was said to be a valid reason to dismiss. It can include dismissing an employee because an important client demands it.

Fairness of Procedure
The test here is whether the employer used a fair procedure and was it reasonable for the employer to finally decide to dismiss the employee once the procedure had been carried out.

Any Employment Tribunal would consider some of the following:

1. Was the employee given a fair hearing by the employer?

2. What evidence was used at the hearing and was it all used?

3. Did the employee have a representative at the hearing or a Trade Union official?

4. If there was more than one employee involved were they all treated in the same way?

5. Had the employee done this before?

6. Did the employer consider warnings, were these used in the past?

7. Did the employer consider the overall performance of the employee, for example, did the employee previously have a long record of good work and behaviour?

8. Could the employer have disciplined the employee instead of dismissing them?

9. Did the employee have an effective right of appeal against the decision?

10. Was the whole procedure carried out in the same way as previous procedures, if not how did it differ and why?

Qualifying for Unfair Dismissal Protection

Employment Law