Dismissal

Types of dismissal and qualifying periods for tribunal claims

Under unfair dismissal law, dismissals occur where:

• the employer terminates the contract
• a limited term contract ends and isn't renewed
• the employee resigns in circumstances where they're entitled to do so because of the employer's actions

An employer may lay off employees without pay for a temporary period, eg because of a downturn in orders. This is not dismissal. However, whether or not an employer has the right to lay an employee off or put an employee on to short-time working is a contractual matter - in other words, it depends on the terms of the contract agreed between them, whether written, oral or implied.

Fair and unfair dismissal

A dismissal is fair or unfair depending on your reason for dismissal and whether you act reasonably. Employment tribunals follow previous legal decisions in deciding what is reasonable. See the pages in this guide on dismissing fairly, and unfair reasons for dismissals.

Constructive dismissal

Constructive dismissal occurs where the employee resigns because you have fundamentally broken their contractual terms, eg if you cut an employee's wages without agreement.

Consequently the individual may claim constructive, unfair dismissal at an employment tribunal. A constructive dismissal is not necessarily an unfair one but it's hard for an employer to show that an action in breach of the contract was, in fact, reasonable.

Wrongful dismissal

Wrongful dismissal is where a contractual term is broken in the dismissal process, eg dismissal without giving proper notice.

However, in special situations you may lawfully dismiss without giving proper notice. For more information see our guide to handling discipline and grievance issues.

Eligibility to complain to a tribunal

Employees can usually claim unfair dismissal only if they're below your normal retirement age (NRA), or 65 if you don’t have an NRA and they've worked for you for at least one year. However, there are some exceptions - see the page in this guide on unfair reasons for dismissal.

Wrongful dismissal has no qualifying period or age limit.

The right to complain to a tribunal about unfair dismissal is unavailable to:

• self-employed people
• independent contractors
• other special groups, eg the police, except in instances of discrimination regarding race, religion, belief or sexual orientation

Subjects covered in this guide

• Introduction
• Types of dismissal and qualifying periods for tribunal claims
• Dismissing fairly
• Unfair reasons for dismissal
• Avoiding unfair dismissal and the consequences of getting it wrong
• Dismissals on performance grounds
• Dismissals on capability grounds
• Dismissals relating to industrial action
• Notice periods
• Final payments and other matters

 

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