Unfair Dismissal

The Basics are:

• Does the employee have the required length of service?
• Is there a fair reason for the dismissal?
• Was the dismissal fair and reasonable in all the circumstances?
• Is the claim in time?

To answer the above, since April 2012 an employee requires two years service to commence a claim of this sort against his/her employer

There are 5 fair reasons upon which to base a dismissal in the Employment Rights Act.  These are;

1. Conduct
2. Capability
3. Redundancy
4. Illegality
5. Some Other Substantial Reason

In order to have acted reasonably in deciding to dismiss an employer must also show that it has acted in a fair and reasonable manner.  The Tribunal looks at this with reference to the substantial merits of the case and the size and resources of the employer.

So for example the Tribunal will look at whether a fair procedure was carried out.  In a conduct dismissal this would mean perhaps suspension, investigation of the issues, a disciplinary hearing, right to be accompanied at the hearing and an appeal.

Even if there is a fair reason to dismiss the dismissal may nevertheless be deemed unfair if procedural flaws can be demonstrated.

Reference should be made to the ACAS Code. Failure to comply with the Code could result in increased compensation up to 25%.

The burden of proof to demonstrate a fair dismissal is upon the employer. Employees have three months less one day from the termination of their employment to commence a claim for unfair dismissal.

Prior to claiming employees must now contact ACAS about Early Conciliation. Extensions can be granted in certain circumstance but this is rare.