Areas covered and explained

Agreement

In order to qualify to bring a claim for unfair dismissal you must have:

  • been an employee
  • completed the one year qualifying period of employment

An employer can dismiss an employee on one of five grounds:

  • Capability
  • Conduct
  • Redundancy
  • Legal prohibition
  • Some other substantial reason

Qualifying period

  • The qualifying period is calculated backwards from the Effective Date of Termination (‘EDT’) i.e. the date that employment ended and must be one year or more
  • If an employee is dismissed for gross misconduct the date of termination is the date that the employee actually receives notification of dismissal whether verbally or in writing
  • If the employee is dismissed with notice the EDT is the date on which the notice expires
  • If the employee is dismissed with notice and paid in lieu of notice the EDT is the date that the employee is told that he is no longer required to work and is being paid in lieu of notice
    Dismissal by virtue of conduct take two forms:
  • Dismissal for misconduct after receiving a sequence of previous warnings for misconduct that is not so serious as to amount to gross misconduct.
  • Dismissal for misconduct which is so serious that the employer is entitled to dismiss the employee forthwith.
  • An analysis of the sequence of previous warnings is all important in determining whether the dismissal has been unfair.

Automatic unfair dismissal

Dismissals will be automatically unfair in some circumstances. For example:

  • The employer is obliged to put conduct allegations in writing to the employee
  • The employer must give a right of appeal to any disciplinary action