When will my dismissal be fair?

There are certain things you will be required to prove for your unfair dismissal claim to be successful. This post looks at the various aspects of an unfair dismissal claim that are necessary for a claim to succeed.

In order to be successful in your claim you must prove the following:

You have the right not to be unfairly dismissed

Certain people do not have the right not to be unfairly dismissed. Those who are not employees for example, those that work on a freelance basis or are contractors. 

These people do not have the relationship of ‘employment’ with their employer. This means they are not protected by the rights attaching to the employment relationship. It is important that the relationship between employers and contractors or freelancers is clearly set out in a contract.

Other categories of persons who cannot be unfairly dismissed are police officers, armed forces and those who work outside of the UK.

You were dismissed

You do not actually have to have been dismissed by your employer to take advantage of this protection.

You will be deemed to have been dismissed in the following circumstances:

•Your employment was terminated either with or without notice;

•You are made redundant;

•Your employer refuses to accept you as an employee after you take part in industrial action;

•You resign from your job as a result of pressure from your employer; or

•Your employer makes it impossible for you to do your job (also known as ‘constructive dismissal’).

You will not have been dismissed in the following circumstances:

•Where a potential employer withdraws an offer of employment before you start a job;

•Your circumstances change, which makes it impossible to continue working for your employer; 

•You resign from your position without pressure from your employer.

The reason you were dismissed was not a potentially fair reason

Your dismissal will potentially be fair if you are dismissed for one of the following reasons:

Capability – You may be dismissed fairly if you do not have the necessary skills to carry out the role. This may also be the case following an period of illness and your employer may be unsure that you can carry out the job as a result of your ill health. Furthermore, if you are not qualified or no longer qualified to do the job, for example if you lose a required liscence and your employer dismisses you, this will be a potentially fair reason.

Conduct – Your conduct can also be a fair reason for dismissal. If you do not conduct yourself in the way that is expected of you in your role, your employer may be justified in dismissing you. The standard of conduct will vary depending on the job you have, however generally the following types of conduct may justify dismissal:

•Not following instructions from your employer;

•Being violent or rude to fellow employees or to clients or customers

•Taking part in criminal activity in your work place or on working time

•Violence in the workplace

Redundancy – Redundancies made in the work place are normally fair, however there are situations where a redundancy is a disguised unfair dismissal. Where an employee brings an unfair dismissal claim  in relation to a redundancy, the employer must dhow to the tribunal :

•The redundancy is genuine;

•They consulted with employees about the prospect of redundancy and they way they would be affected

•The employee was selected for redundancy through a fair process 

•The employee was offered alternative employment suitable to them as an alternative to redundancy.

Statutory Breach - This is a similar ground to that of capability but where you are restricted from carrying out the role by law. For example, if you are a lorry driver and you lose your driving licence, it will be fair for your employer to dismiss you.

Some Other Substantial Reason (SOSR) – Where the employer can show that there is another substantial reason outside those listed above. Generally these reasons with be specific to the situation surrounding the dismissal.

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