Employees have a range of protection under the law against being dismissed unfairly. To obtain this protection there are considerations relating to the length of continuous service, which the employee has, the period of time that has elapsed between the dismissal and legal action being commenced through an Employment Tribunal.
Certain categories of employee are, however, excluded from the provisions. These include those who are not employees for example, an independent contractor or freelance agent (in some cases specified workers who are not employees can claim that they have suffered a detriment by the termination of their contracts - for further details please call the Qdos employment help line); employees who have not completed one year's continuous employment; employees who have signed an ACAS conciliation or a compromise agreement (with the benefit of legal advice); members of the police and Armed Forces; masters or crew members engaged in share fishing and who are paid solely by a share of the catch and employees covered by a dismissal procedures agreement which has been exempted from the unfair dismissal provisions by an Order made by the Secretary of State.
For those employees who are protected, there are five designated reasons, which can constitute a fair reason for dismissal. They are:
- Conduct
- Capability
- Redundancy
- A statutory requirement
- Some other substantial reason
- Retirement
There is a range of circumstances where the dismissal will be automatically unfair. This list is constantly evolving but includes dismissals relating to race, age, sex, disability, Trade Union affiliations, religion and sexual orientation. It is also automatically unfair to dismiss an employee who has asserted a statutory right or who has taken action or proposes to take action on health and safety grounds. No qualifying period of service is needed to bring a claim to an Employment Tribunal in these circumstances.
An Employment Tribunal will, in unfair dismissal cases, require the employer to show:
- What the reason for dismissal was.
- That this was the reason which really applied in the circumstances.
- That in all the circumstances of the case, the decision to dismiss was a reasonable response available to a reasonable employer.
In summary, employers need to show that they had substantive reason to terminate the employment and that the dismissal was procedurally fair in all the circumstances.
Unfair dismissal complaints form the vast majority of complaints brought before Employment Tribunal and with the ever expanding range of employment law, there is no reason to believe that the volume of cases will diminish to any significant degree.
However, there are attempts to involve ACAS in arbitrating on cases rather than the Employment Tribunal and this may reduce the volume of cases brought before an Employment Tribunal.
In any event, ACAS officers are attached to almost all Employment Tribunal cases in an attempt to avoid an unnecessary Tribunal hearing by brokering an agreement between the parties. There is a period of three months in which ACAS are available for helping reach a settlement between the parties.
Conciliated settlements through ACAS enable the parties to reach a full conclusion to the claim and to have a legally binding agreement (COT 3) to rely upon.