What are the Grounds for unfair dismissal claims?
The grounds for unfair dismissal claims are such that if you have been dismissed without any good reason by your employer and you have been employed for at least 2 years (this is following the 6 April 2012, if you were employed prior to that date you would just need 1 years service to make the claim). If you feel this is the case you might have the grounds for an unfair dismissal claim.
Please note you only have 3 months minus 1 day to submit your claim to the tribunal and if you miss this deadline it is doubtful that it will be accepted by the tribunal.
For the employer to argue that you don’t have the grounds for an unfair dismissal claim then they need to show that the reason for your dismissal falls within one of 5 potentially fair reasons.
The 5 potentially fair reasons are as follows:
Capability
Under the Employment Rights Act 1996 a dismissal is potentially fair if it “relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do”[1] This will then fall under two categories that of poor performance and that of ill health.
If the dismissal is down to ill health if the illness is a significant one then although the dismissal may be fair it could potentially be covered under disability discrimination instead. You would need to check first with your GP to ensure that your illness is covered under the Equality Act 2010.
With regard to poor performance the employee should be given an opportunity to improve either through training or increased supervision. On top of this they should be given an adequate opportunity to show they are improving as otherwise it could still be deemed unfair.
Conduct
It is potentially fair is the employer dismisses the employee because of their conduct. This can be either a single act of significant misconduct (often labelled gross misconduct) or a series of small acts of misconduct. These acts of misconduct can be quite varied and could include:
-unauthorised absences from work
-violence at work
-repeated poor attendance
-breach of certain terms of the contract
The employer will often include examples within the contract and handbook and it might be wise to check what they consider as misconduct. It should be noted that what is viewed as unacceptable might change over time. With the increasing importance of social media we are seeing many employers dismissing their employees over it and whether it comes down to fairness will a lot of the time come down to whether they have introduced a social media policy or have warned you against posting certain items on these sites.
Redundancy
A redundancy based dismissal is potentially fair if the dismissal is “wholly or mainly attributable” to the employer
-Ceasing or intending to cease to carry on the business for the purposes of which the employee was employed by it. In other words the business is closing down.
-Ceasing or intending to cease to carry on that business in the place where the employee was so employed. This means that the workplace is being closed down.
-Having a reduced requirement for employees to carry out work of a particular kind or to carry out work of a particular at the place where the employee was employed to work .[2]
There are certain circumstances where a dismissal on the grounds of redundancy will be automatically unfair and include if you’ve made a protected disclosure (i.e. made a complaint about health and safety reasons or illegal activities), you’ve announced that you’re pregnant or if it’s linked with a transfer of undertakings.
There are other reasons so please do not hesitate to contact us on [phonenumber] where we will be able to discuss your situation further.
For standard redundancies to counter your grounds for unfair dismissal they will need to show that they have acted reasonably in all circumstances in selecting the employees for redundancy. Examples of factors employers need to consider can be found here.
Statutory Restriction
The dismissal will be potentially fair if the employee “could not continue to work in the position which he held” and if they did continue to work it would result in a duty or restriction being contravened.
The employer does have to show that continuing employment would actually contravene the restriction and it wasn’t just a possibility of it happening.
The best example of this would be if the employee’s job required considerable amount of driving but they had lost their driving licence.
Some other substantial reason
This potentially fair reason is that the dismissal was “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”. This is a catch all reason for any dismissal that doesn’t fall into any other category.
For the employer to show SOSR, they need to establish a reason for the dismissal which is of a kind that could justify the dismissal of the employee. It doesn’t need to show that it did justify the dismissal. Once the tribunal accepts there is a potentially fair reason they will look to whether a fair procedure was followed and whether it was within the range of reasonable responses.
What next?
If following reading this page you feel that you do have some grounds for unfair dismissal and the employer won’t necessarily have a potentially fair reason for the dismissal please do not hesitate to contact us on [phonenumber]. One of our team will be able to discuss your situation and advise you on whether you have a case that could be taken forward on a no win no fee basis