Employees (but not ‘workers’ – learn about the difference in our employment status factsheet) have a statutory right not to be unfairly dismissed. The law in Great Britain on unfair dismissal is mainly contained in the Employment Rights Act 1996. The law in Northern Ireland is covered in our factsheet for CIPD members on the legal differences from Great Britain.
To successfully defend an unfair dismissal claim, the employer needs to show that the dismissal was fair because it was for a specific reason and was handled properly.
To be potentially ‘fair’, a dismissal must be for one of five reasons:
- Capability or qualifications.
- Illegality or contravention of a statutory duty.
- Some other substantial reason
- Redundancy - see our Redundancy factsheet for more. CIPD members can see more detail in our Redundancy law Q&As.
Retirement is no longer a potentially fair reason for dismissal.
There are special statutory rules relating to discussions before a potential dismissal which lead to a settlement agreement. For more detail, CIPD members can see our Tribunal claims, settlement and compromise law Q&As.
Individual dispute resolution procedures
Employers should have clear individual dispute resolution procedures that are communicated to all staff. Line managers and any staff members involved in managing disciplinary and grievance matters must be properly trained in the organisation’s policies and procedures and know how to implement them. All disputes should be handled in a fair and consistent way across the organisation.
As well as falling within one of the five potentially fair reasons for dismissal, an employer must also have acted fairly and reasonably. This involves following a fair procedure and an employment tribunal still has wide discretion on what it considers to be 'fair'.
Even if an employee is found guilty of an act of very serious misconduct (often called ‘gross misconduct’), this will not necessarily be enough to make any dismissal fair. The employer still must also carry out a thorough investigation and consider all the circumstances.
Dismissal is a serious matter that needs careful handling. Before taking any action, managers should first establish the facts. And before considering dismissal, managers should also consider if a more positive approach that does not involve dismissal is likely to be effective.
Matters relating to conduct - where the employee’s conduct is an issue, the level of ‘proof’ that the employee committed an alleged offence is not as high as that required in the criminal courts. However, the employer must be able to demonstrate that it carried out a thorough investigation into the alleged offence. Acas has published guidance.
Matters relating to poor performance - where the employee’s capability is an issue, matters may be beyond the employee’s control; if so, the employer should put in place appropriate remedies (often involving learning and development) to help improve the employee’s performance.
Employers should take account of any other circumstances, such as an underlying health condition, in addressing poor performance, facilitate a supportive conversation, and signpost to any expert sources of help if needed. See our factsheet on performance management.
If these positive approaches aren't effective, the employer may need to take disciplinary action, which could include dismissal.
Following a fair procedure
Acas provides guidance on dealing with disciplinary and dismissal and grievance matters in its Code of Practice. Employment tribunals will always take the Acas Code into account and employers must follow the Code.
Employers must also follow their own contractual or customary disciplinary process or dismissal procedure for a dismissal to be 'fair'.
Employers should usually follow at least three stages (although an appropriate procedure will often be more complex than this). For example:
- The employee should be informed in writing of the alleged offence.
- There should be a meeting between the employee and employer to discuss the alleged offence. Legally, the employee can be represented at this meeting by a trade union representative or colleague.
- The employee should have the opportunity to appeal against any sanction.
All decisions throughout the process on suspension and disciplinary sanctions should be taken by more than one person to help ensure impartiality.
The employer should ensure that all communications, in whatever format, should be timely, comprehensive, unambiguous, sensitive and compassionate.
Maintaining people’s dignity and safeguarding their health and wellbeing
Concern for the health and welfare of people involved in a disciplinary procedure should be a priority at every stage.
Suspension should be a matter of last resort, when working relationships have broken down irreparably and after all other reasonable options have been considered. It should be reviewed on an ongoing basis and be time-bound.
If an employer does fairly dismiss an employee, they should still have regard to the individual’s health and wellbeing and the potential impact that the action could have on them. Even where the organisation has carefully followed a thorough process and the dismissal is justifiable and proportionate, it is likely to be a devastating outcome for the individual. The organisation should act with compassion as part of a person-centred approach, whatever the circumstances, and ensure that support is available where needed.
Qualification to make a claim
There is a period at the start of employment when employees do not enjoy protection from unfair dismissal, known as the 'qualifying period’. There are two qualifying periods for claiming unfair dismissal:
All employees must contact the Acas early conciliation service before making an employment tribunal claim following a grievance. CIPD members can see more in our law Q&As covering early conciliation.
There are numerous exceptions to the requirement for a qualifying period to bring a claim. These include dismissals for:
- Trade union membership or activities.
- Pregnancy or childbirth.
- Taking maternity, adoption, paternity or parental leave.
- Claiming the National Minimum Wage or National Living Wage.
Is the dismissal automatically unfair?
Examples of automatically unfair reasons for dismissal include those listed above. CIPD members can see more detail in our Unfair dismissal law Q&As.