(a) Under the Employment Rights Act (ERA) 1996 employees have a right not to be unfairly dismissed. A number of situations are considered automatically to be unfair, however, once the employee has to show that they have been dismissed the onus is placed on the employer to show that they acted reasonably in dismissing them for a potentially fair reason within s.98 ERA.
The following are situations where dismissal is automatically unfair:
(i) Dismissal for trade union reasons. This applies where an employee has been dismissed for actual, or proposed, membership of a trade union, or is dismissed for taking part in trade union activities. It also applies where an individual has refused to join a trade union.
(ii) Dismissal on grounds of pregnancy or childbirth or other reason connected to her pregnancy or following her maternity leave period.
(iii) Dismissal in relation to health and safety issues, such as bringing to the employer’s attention any reasonable concern related to health and safety matters or leaving their place of work in the face of a reasonably held belief that they faced serious danger.
(iv) Dismissal for making a protected disclosure to the appropriate authorities. This action, otherwise known as ’whistle blowing’, covers criminal activity, breach of legal obligations, breach of health and safety provisions, and activity damaging to the environment on the part of the employer.
(v) Dismissal for asserting a statutory right governing such aspects of employment as the length of working time or minimum wage payment.
On the other hand, the following five categories may be counted as fair:
(i) Lack of capability or qualifications. However, even in this situation, the employer must show that not only was the employee incompetent but that it was reasonable to dismiss them.
(ii) Misconduct. Any such behaviour must be sufficient seriousness to merit the description ‘gross misconduct’. Examples of such conduct might involve assault, drunkenness, dishonesty or a failure to follow instructions, or safety procedures, or persistent lateness.
(iii) Redundancy is a prima facie, a fair reason for dismissal as long as the employer has acted reasonably in introducing the redundancy programme.
(iv) In situations where continued employment would constitute a breach of a statutory provision, for example, if a driver is banned from driving then they may be fairly dismissed.
(v) Some other substantial reason such as a clash of personalities. This final general provision means that it is not possible to provide an exhaustive list of all grounds for ‘fair dismissal’. However, none of the above reasons are sufficient in themselves to justify dismissal and under all instances the employer must act as would be expected of a ‘reasonable employer’. |
