An unfair dismissal claim enables dismissed employees with the necessary qualifying service (2 years) to challenge their dismissal.
To successfully show that it was a fair dismissal the employer must be able to show that the reason (or principal reason, if more than one) falls within one of the categories as set out in the Employment Rights Act 1996.
These ‘fair’ reasons for dismissal are:
- A statutory restriction (i.e. a driver losing their driving licence)
- Some other substantial reason
In addition to showing that the dismissal falls into one of these reasons, the process that the employer follows in dismissing the employee will need to be fair.
It is usually straight forward for an employer to demonstrate that a fair reason existed, but in addition to this they would also need to demonstrate that they have followed a fair process. Effectively an employment tribunal would still need to be convinced that the employer acted reasonably in treating the ‘fair’ reason as sufficient for dismissing the employee.
Range of Reasonable Responses
This is often referred to as the ‘range of reasonable responses test’, which tribunals use when assessing overall fairness. This test gives some leeway for employers, recognising that one employer’s response to a situation may be different to another and that therefore there is an acceptable ‘range’ of responses an employer may take. If their actions are deemed to be outside of this range, then the dismissal will be considered unfair.
Each of the categories above will have different processes that an employer is expected to follow, depending on the circumstances, such as disciplinary, capability or redundancy processes.
Constructive dismissal is where an employee is forced to resign due to their employer’s conduct, effectively treating this conduct the same as if a dismissal had taken place.
Constructive dismissal claims are notoriously difficult for employees to bring as they require the following to be shown:
- There has been a repudiatory (fundamental) breach of contract by the employer (often a breach of the implied term of trust and confidence is relied upon)
- The employee must accept that breach (and not waive or affirm the breach through their conduct); and
- The employee must resign in response to the breach
The difficulty with constructive dismissal claims is that the onus is initially on the employee to show that the employer has fundamentally breached the contract of employment. If this is not shown, the employee will have just resigned from their post. In an unfair dismissal claim, the onus will be on the employer in the first instance to demonstrate that they had a fair reason for terminating employment.
With both of these claims, a qualifying period of service of over two years continuous service is required in order to bring a claim (unless for some specific circumstances where two years’ service is not required).
Compensation for unfair/constructive dismissal claims is based on loss of earnings and is capped at 52 weeks salary, or just under £90,000.
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