Unfair Dismissal

Entitlement to claim

To be able to present a claim of unfair dismissal to an Employment Tribunal it is necessary that :-

• The person bringing the complaint is “an employee” meaning an individual who has entered into or works under a contract of employment.
  
  
• The employee has one or more years continuous employment with the same or an associated employer unless the dismissal is for a reason related to the employees Trade Union membership/activities, is connected with pregnancy or maternity, is for a health and safety reason or is because the employee has brought a statutory claim against the employer (such as a claim for unlawful deduction of wages).
  
  
• The employee is under normal retirement age at the date of his or her dismissal.
  
  
• The claim has been presented to an Employment Tribunal in time i.e. within a period of three months beginning with the effective date of termination of the contract of employment.

Constructive dismissal

A constructive dismissal arises where the employee terminates the contract of employment, with or without notice, in circumstances where he or she is entitled to terminate by reason of the employer’s conduct. To establish a constructive dismissal it is necessary for the employee to prove that :

• There was a serious breach of contract by the employer
  
  
• The employee resigned in response to that breach
  
  
• The employee did not waive the breach by delaying too long before resigning.

Common examples of situations which could give rise to a claim for constructive dismissal include where an employer unilaterally reduces an employee’s pay, where an employer unilaterally changes the job content and status of the employee and where an employer, without reasonable and proper cause, conducts itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee.

Circumstances in which there is no dismissal

Certain circumstances exist in which the Employee will not have been dismissed :

Agreement :

Where the contract of employment has terminated by agreement between the employer and employee;

Frustration :

Where, through no fault of either employer or employee, there is a change in circumstances which means either that the contract becomes impossible to perform or that its performance would produce a radically different result from that originally envisaged. Frustration can arise through death or imprisonment and potentially where an employee is absent because of sickness for an indefinite period. This is an area of the law requiring specialist expertise and knowledge.

Operation of Law:

Employment can terminate by operation of law where, for example, a Court Receiver is appointed of the employer or an employer company is compulsorily wound up.

Performance :

A contract of employment may terminate upon conclusion of a particular project or task and not amount to a dismissal where an employee has been engaged to carry out that project or task.

Resignation:

An employee will not have been dismissed where he or she terminates the employment by words or conduct which are unambiguous and there is no constructive dismissal or the employer has not given earlier notice. Ambiguous words or conduct may not be held to be a resignation and an Employment Tribunal will look at the surrounding circumstances in order to determine whether a resignation actually occurred.

Potentially fair dismissals

In order to successfully defend a claim for unfair dismissal an employer will need to show not only that a fair reason for the dismissal existed but also that it followed a fair procedure before reaching the decision to dismiss. The Employment Rights Act 1996 provides that there are five potentially fair reasons for dismissal :-

• Misconduct
  
  
• Poor Performance (assessed by reference to skill, aptitude, health or any other physical or mental quality)
  
  
• Redundancy
  
  
• Because it would contravene some duty or restriction imposed by law (e.g. loss of a driving licence)
  
  
• Some other substantial reason of a kind so as to justify the dismissal of the employee (e.g. where an employee refuses to accept a business re-organization even if the employer is in breach of contract, provided the employer acted reasonably)