Unfair dismissal is a statutory right giving employees with one year’s service the right to complain to a tribunal that they have not been treated fairly or reasonably by their employer.
All employees have the right not to be unfairly dismissed and a dismissal is classed as ‘automatically unfair’, regardless of the reasonableness of an employer's actions, if an employee is exercising specific rights to do with:
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pregnancy – including all reasons relating to maternity.
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family leave – such as parental leave or paternity leave.
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representation – such as trade union membership.
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discrimination – including protection against discrimination on the grounds of age, sex, belief.
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pay and working hours – including the Working Time Regulations.
So what’s ‘fair’ dismissal?
It’s fair for employers to dismiss an employee for one of the following reasons:
- Misconduct at work
- Lack of capability (or qualifications) to do the job
- Redundancy (carried out under certain conditions)
- A statutory requirement
- Retirement (carried out under certain conditions)
- Some other substantial reason
However, even if the employer convinces a Tribunal that they dismissed their employee for one of those reasons, they still have to show that they followed a reasonable procedure as set out in the ACAS (Advisory, Conciliation and Arbitration Service) code of conduct. They must also show that the decision to dismiss fell within the range of reasonable responses open to that employer.
Dismissals around company transfers
If the business you work for is being transferred to or taken over by another company, your position may be protected under the Transfer of Undertakings (TUPE) protections.
If you’re under TUPE and you’re dismissed by either your old or new employer because of the transfer, or a reason connected with it, the dismissal will be automatically unfair. To make it a fair dismissal, your employer must demonstrate that it was for a sound economic, technical or organisational reason.
Redundancy and retirement
Technically, redundancy is a form of dismissal. So, f you’re selected for redundancy and the reason for that selection is deemed unfair, then this is a case of unfairly dismissal.
Similarly, retirement is also a form of dismissal and must meet certain conditions to be fair:
- The retirement date is on or after your 65th birthday - if 65 or over is your employer’s normal retirement age (or on or after your employer’s normal retirement age if they have justified having a lower retirement age than 65).
- Your employer has given you proper notice of your retirement date (and if you are making a request to work longer than your retirement date your employer must have considered this)
- You retire on the intended date
The information on these pages is provided for your information and reference only. Before making any important decisions regarding your employment or any legal matter, you should consult a qualified professional adviser who can provide specific advice based on your individual position. You can receive additional guidance from the government-run employment advice service Acas.
