There is more to this than the term implies. We all think we know what is fair and unfair so it is an understandable misapprehension that if the termination of someone’s employment is “unfair” in common parlance then a claim for compensation must surely follow.
An employer faced with an unfair dismissal claim has to prove two things to show that it is fair. First, he must show that the reason for dismissal was for one of a list of potentially fair reasons: misconduct; capability; redundancy; illegality of contract; or, the sweeping-up provision, “some other substantial reason” – for example, a re-organisation.
If the employer can show that one or more of these reasons applies then he has to show that to dismiss was in all the circumstances reasonable. This can be more difficult for the employer than just showing the reason. The test has been expressed as whether the employer has acted within the range of reasonable responses to the given situation. In other words whilst some employers might not have dismissed others would have done.
There is no absolute measure for this: it is a matter of degree in each case. To illustrate this: some employers might well dismiss for a first offence of minor theft; another might not. Just because one employer might not dismiss does not make it unreasonable for the other to do so. All the circumstances need to be looked at.
In addition there are a number of other circumstances in which a dismissal is treated as automatically unfair. This means that the reasonableness test does not have to be satisfied. To name a few of these: failure to follow procedure regarding retirement dismissal; dismissals because employee raises health and safety issues or asserts a statutory right/whistleblows, is absent because of jury service, refuses to do Sunday work when not opted out, refuses to work more than 48 hours per week when not opted out.
The maximum compensatory award for unfair dismissal is currently £65300 but a Basic Award calculated by reference to age and number of years service can increase this by a maximum of £11400. The amounts usually change upwards yearly). There is no limit on the compensatory award for health and safety/whistleblowing- related automatic unfair dismissals.
It can be an expensive business to make a mistake. Take care if you are an employer. If you are an employee make sure that the employer understands that he must get it right.
Either way, I am able to help you check out the position.
