Unfair dismissal

Contents
1. Overview 2. The burden of proof

The law gives most employees the right not to be unfairly dismissed. You must be able to show, not only that you had good reason to dismiss your employee, but also that you acted fairly in the way in which you handled the dismissal.

You must therefore show that you were lawfully entitled to dismiss the employee and that the dismissal was fair. If not, the employment tribunal may either make an order for reinstatement or award the employee monetary compensation.

Generally an employee must have one year's service to be able to pursue a claim for unfair dismissal; however, there are a number of exceptions for which there is no qualifying period (such as maternity, whistleblowing, parental leave, union organising etc.). Always consult our telephone legal advice helpline before dismissing any employees. If an employee considers that he/she has been unfairly dismissed, he/she is entitled to bring a claim before an industrial tribunal and apply for reinstatement, re-engagement or compensation of up to £65,300 (this figure changes every February and this is correct as at 1 February 2010).

Usually the burden of proving that the dismissal was fair lies with the employer. To successfully resist a claim the employer will have to show that:

• the reason for the dismissal was a fair one;
• the employer acted reasonably in the way the dismissal was carried out.

For an dismissal to be held to be fair, an employer must show that the reason for dismissal fell within one or more of the following categories:

• Capability or qualifications of the employee
• Conduct of the employee
• Redundancy
• The employment could not continue without a breach of a statutory duty or restriction
• There was some other substantial reason justifying dismissal

The employer must also show that it acted reasonably in treating one of the above reasons as a ground for dismissal.