Unfair dismissal

Overview

The law gives most employees the right not to be unfairly dismissed. An employee who feels they were dismissed unfairly could make a claim for unfair dismissal at an Employment Tribunal.

If that happens, 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 tribunal may either make an order for reinstatement or re-engagement, or award the employee monetary compensation.

Generally, an employee must have 2 years' continuous 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.

The burden of proof

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; and
• they acted reasonably in the way the dismissal was carried out.

For a 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.