Under s.94 of the Employment Rights Act 1996 (“ERA 96”) employees have the right not to be unfairly dismissed from their employment. There are two broad ‘types’ of unfair dismissal – ‘normal’ unfair dismissal and ‘automatic’ unfair dismissal.

In ‘normal’ unfair dismissal cases the employee’s right to claim for unfair dismissal is engaged after 51 weeks of continuous employment (plus the 1 week statutory minimum notice). In cases of ‘automatic’ unfair dismissal the employee does not have to have a period of minimum service. However, for a dismissal to be automatically unfair the reason for the dismissal must relate to a very limited range of circumstances (i.e. a female employee is dismissed because she is pregnant or has engaged her maternity rights, an employee is sacked for complaining of breaches of health and safety regulations etc.).

As can be seen above, there are two main ‘qualifications’ to comply with to be able to claim for unfair dismissal in the Employment Tribunal. These are:

  1. You must be an ‘employee’ of your employer; and
  2. If not a case of automatic unfair dismissal, you must have had 51 weeks continuous service with your employer; and
  3. You must have been dismissed; and
  4. In most circumstances you must be employed wholly or mainly in Great Britain at the time of your dismissal

If you do are not an employee of your employer (to be defined in a future blog post) then you cannot engage the right to claim for unfair dismissal under s.94 ERA 96. If you do not have 51 weeks continuous service (except for claims of automatic unfair dismissal) then you cannot engage the right to claim for unfair dismissal under s.94 ERA 96.

There is no lower age limit to unfair dismissal claims. However, if you are under the age of 16 then you may have to utilise your Local Authority’s procedures to claim.

Your right to claim unfair dismissal

If you qualify for your s.94 right under the ERA 96 (see above) then an analysis of your issue moves on to consider whether you were unfairly dismissed. This involves a consideration of two aspects:

  1. Substantive unfairness – was the decision to dismiss you within the reasonable range of responses that the employer could have taken?
  2. Procedural unfairness – was your dismissal procedurally fair?

It is normally difficult to show liability for substantive unfairness – employers are given substantial leeway by the Employment Tribunal to make management decisions and Employment Tribunals must not “substitute” their view of the fairness of the dismissal for the employer’s.

However, employers can’t dismiss an employee out of hand without regard to natural justice. To show that the employer has made a reasonable decision in dismissing the employee the employer must demonstrate that there was a genuine reason for the dismissal of the employee; that this reason was a ‘potentially fair’ reason for the purposes of s.98 ERA 96; that it undertook reasonable investigations into the allegations made against the employee; that it could have formed a reasonable belief in the employee’s ‘guilt’ as a result of the investigations; and, crucially, that the employer had a genuine belief in the ‘guilt’ of the employee.

Whether a dismissal was procedurally fair is determined with reference to whether they have complied with their disciplinary procedure (if one exists) and whether they have complied with the ACAS Code of Good Practice in dismissing the employee. For example, if there is evidence to show that the employee wasn’t allowed to put their case during a disciplinary hearing or that the employer has ignored key evidence in coming to its decision to dismiss the employee then the employee may have reasonable grounds for asserting that their dismissal was procedurally unfair.

If a Claimant (that’s you) succeeds in demonstrating liability for unfair dismissal then compensation is the next step. Compensation in unfair dismissal cases is calculated by:

  1. Calculating the Basic Award (a set calculation)
  2. Calculating the Compensatory Award (the amount of wages lost plus pension rights plus other contractual benefits)
  3. Adding the Basic Award and Compensatory Award together

An important point to note is that if the dismissal is substantively fair but procedurally unfair a “Polkey” reduction may apply. This generally means that the amount of the compensatory award will be reduced to reflect that the fact the employee ‘would have been dismissed anyway’. For example, if an incorrect redundancy procedure was carried out but the employee would have been dismissed for redundancy anyway then the Employment Tribunal would award compensation for the number of weeks that a correctly carried out procedure would have taken. This substantially reduces any potential compensation.

Compensation may also be reduced for contributory fault and/or a failure to mitigate. Compensation may further be increased or decreased for a failure to comply with disciplinary or grievance procedures, depending on whom was at fault.

The various elements of this post will be expanded upon in future posts. Stay tuned!



The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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