Unfair Dismissal

Ayesha Zabir (Student)

 Employment Tribunal numbers are increasing yearly. A report by the Ministry of Justice shows that Employment Tribunal claims increase 26% year on year:

  • There were 27,916 claims between April 2017 to March 2018.
  • There were 35,429 claims between April 2018 to March 2019.

Unfair dismissal claims have increased by 19.97%

Before the Industrial Relations Act 1971, there was no statutory right to protection against unfair dismissal and an employer could dismiss an individual for any reason. The only protections available were established in contract and enforced through the common law. Unfair dismissal is governed by the Employment Rights Act 1996, within this act section 94(1) states ‘An employee has the right not to be unfairly dismissed by his employer.’ The Employment Rights Act sets out strict criteria which individuals must satisfy for protection under the Act.

If the criteria are not satisfied, then the individual will not be protected under the Act and their only claim will be contractual. The criteria are:

  1. The individual must have ‘employee’ status

The ‘employee status’ means the individual is an employee and/or a worker and is not self-employed. Only employees have the right to claim unfair dismissal.

  1. They must have two years continuous employment

An employee can challenge an unfair dismissal if they have  worked for the employer for two years or more.

  1. They must have been dismissed

 For a successful unfair dismissal claim, the employee has a duty to demonstrate they have been dismissed. The employee has been dismissed if the employer has done any of the following:

  • Ended the contract of employment (with or without notice)
  • Refused to renew a fixed-term contract
  • Made the employee redundant
  • Stopped the employee from returning to work after maternity leave

Evidence of the dismissal will be required, such as official termination letter, emails and text messages from the employer. The employee has not been dismissed if they are suspended or resigned by choice (unless they are claiming constructive dismissal).

  1. The Employer has not acted reasonably procedurally

This could include following a disciplinary procedure, providing the employee with warnings, rights of appeal etc.

The claim must be made within 3 months of the effective date of termination

An extension in some cases may be granted if the tribunal decides it was not reasonably practicable for the claim to be submitted and the delay was reasonable however these matters are determined on the facts of the case.

Remedies for unfair dismissal –

When a claimant is successful in their unfair dismissal claim there are four possible outcomes, reinstatement, re-engagement, compensation and a declaration that a dismissal was unfair. In a third of these claims, compensation, is the most common outcome.

Reinstatement involves the ex-employee returning to work, with full pay, pension rights and any seniority-related increments honoured. The employee must be treated as they were never dismissed. Re-engagement also involves the ex-employee returning to work, but not necessarily into the same job or on the same terms and conditions. The precise terms of re-engagement vary depending on the case. These two outcomes are very rare in an unfair dismissal claim.

Staffordshire University Legal Advice Clinic (SULAC) provides free legal advice on all employment matters. We are working remotely during the pandemic and interviews are conducted via Microsoft Teams. If you would like to make an appointment, please contact us on01782 294800 or email us on SULAC@staffs.ac.uk 

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