Unfair Dismissal

Unfair Dismissal

Unfair dismissal is the term used to describe an employer's action when terminating an employee's employment contrary to the requirements of the Employment Rights Act 1996. The concept of Unfair Dismissal therefore has a narrower meaning than is commonly understood. In particular, a termination by the employer in breach of the employee's contract of employment (in other words a dismissal without notice, where the employer is obliged to give notice) is described as 'wrongful dismissal', and not as unfair dismissal.

Where the employee resigns or terminates his contract (without notice) due to some action on the part of the employer which would entitle the employee to terminate without notice (whether or not the employee actually gives notice), this is known as constructive dismissal. The normal circumstances in which an employee would be so entitled are in cases of a 'fundamental breach of contract' by the employer.

Claims of unfair dismissal can only be brought before an employment tribunal. There are strict and very short time limits for claims of unfair dismissal. Normally a claim must be brought within three months of the last day of employment, counting the last day of employment as the first day of the three month period. This rule is often summarised as 'three months less a day'.

There are a number of reasons for dismissal which are automatically unfair and apply to all employees regardless of length of service, such as pregnancy, or having previously asserted certain specified employment rights. For those employees who have a year's continuity of service at the date of dismissal, or who have been dismissed without notice and are within a week of gaining a year's continuity of service, they may only be dismissed if the employer dismisses for a potentially fair reason, the employer follows a fair procedure, and the employer acted reasonably in treating that reason as sufficient for dismissal.

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