Contents :

  4. Considerations on Fair Reasons
  5. Fair Procedure
  6. Unfair Dismissal in General
  7. Grounds for Dismissal
  8. Employee’s contributory fault
  9. Frustration of the contract
  10. Remedies for unfair dismissal
  11. Time Limits
  12. Discriminatory dismissal


Dismissal is the ultimate disciplinary action and is said to have taken place in the following circumstances:

1. unilateral termination of contract by the employer,
2. failure to renew a fixed term contract,
3. constructive dismissal (the employee resigns because his position becomes unattainable due to the conduct of his employer).

The EPCA provides that where an employee who has been continuously employed for two years or more is dismissed, with or without notice, or by failure to renew a fixed term contract, he must be provided by his employer on request within 14 days, with a written statement giving particulars of the reasons for his dismissal. This is admissible evidence in any proceedings relating to the dismissal.

Dismissal may, according to the circumstances, be:

1. lawful or unlawful dismissal,
2. summary dismissal,
3. fair or unfair dismissal.


This term means dismissal in accordance with the terms of the contract (e.g. notice clause which provides the period of notice which an employer must give an employee in dismissal).

The EPCA provides that an employee is entitled to one week’s notice after four week’s service, two weeks’ notice after two years’ service, and for each year of service afterwards it is increased by one week to a maximum of twelve weeks after twelve years of service.

Where there has been gross misconduct by the employee, the employer may terminate the contract without notice or within the period of notice provided in the contract.

Failure to give the employee the legally required notice period gives rise to claims for unlawful dismissal.

Remedies for unlawful dismissal are assessed on the basis of all foreseeable loss (lost wages).

An employee can claim compensation for breach of contract in County courts (claims up to 5,000) or in the High court (claims more than 5,000).


This is dismissal based on gross misconduct, i.e. where an employee acts in a manner contrary to the terms of the contract of employment and it may be done without notice or with a period of notice less than that found in the contract.

Gross misconduct is a question of fact in all the circumstances unless clearly identified in the contract.


Dismissal is considered fair where a fair reason has been given and a fair procedure has been followed. When either a fair reason is not given or a fair procedure has not been followed, the employee may claim against the employer for unfair dismissal.

Fair reasons are:

1. lack of capability (lack of skill or mental or physical health, incompetence, inadequate qualifications or sickness),
2. misconduct (disobedience, negligence, immorality),
3. redundancy,
4. union related dismissals (e.g. failure to comply with a union membership agreement),
5. to avoid contravention with a statutory requirement or restriction placed upon the employer or employee,
6. taking part in a strike or other industrial actions,
7. some other substantial reason (crime or suspicion of crime such as theft).

Considerations on Fair Reasons


Strike is defined as a situation where people are refusing to do their job. All employees taking part on a strike must be treated in the same manner, otherwise issues of unfair dismissal may arise.


Incapability arises where an individual is not capable of doing his job in a proper manner.

Breach of Statutory Requirements

Where legislation makes certain types of employment unlawful, the employer may be required to dismiss relevant employees. This would be both fair and lawful if proper notice is given.


The EPCA gives an employee the right to a redundancy payment if he is dismissed because of a redundancy.

A person may be made redundant at an employer’s will. It is therefore necessary to have built in to the contract of employment a redundancy selection procedure (e.g. an employer-trade union agreement).

Redundancy is defined in the EPCA as:

"an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to:

a) the fact that his employer has ceased, or intends to cease to carry on the business for the purposes of which the employee was employed by him or in the place where the employee was so employed, or
b) the fact that the requirements of that business for employees to carry out work of a particular kind, have (or are expected to) ceased or diminished.

Some categories of employees are ineligible for redundancy payments. These are:

1. domestic servants in private households who are close relatives of the employer,
2. employees who have not completed at least two years of continuous service since reaching the age of 18,
3. men and women who have reached the retirement age,
4. part time workers who work less than 16 hour per week,
5. where a fixed term contract of two years or more the employee has agreed in writing to forgo his right to claim redundancy payment,
6. employees who work outside Great Britain,
7. workers on strike,
8. crown servants and employees of the House of Common Staff,
9. share fishermen.

Fair Procedure

Grievance and disciplinary procedures are usually part of the contract. The employer must comply with them if he wishes to avoid liability. If a series of oral and written warnings is laid down, the procedure should be observed.

An example of a fair procedure is laid down below:

Employer’s duties:

1. notify employee of allegation,
2. fix time for hearing,
3. confirm right to be accompanied,
4. employee attends with friend,
5. allegation re-iterated,
6. employee asked: do you admit or deny?
7. employer interrogates employee to obtain story,
8. calls witnesses for allegation who are examined and cross examined,
9. adjourns a decision.

Employee’s rights:

1. call further witnesses which are examined and cross examined,
2. employee seeks any further information required.

The final decision may be:

1. immediate dismissal,
2. dismissal with notice,
3. issue of a reprimand or warning.

Unfair Dismissal in General

The concept of unfair dismissal is based on property rights; i.e. to lose your job is to lose some of your property.

The following are ineligible and can not claim compensation for unfair dismissal:

1. employees who have not completed one year’s continuous employment (unless the dismissal is automatically unfair),
2. employees who have attained the retiring age,
3. persons employed outside Great Britain,
4. those on fixed contracts of two years or more if they have agreed in writing to forgo the right to compensation,
5. employees taking unofficial strike or other industrial action,
6. women dismissed because of pregnancy if they have not been employed for two years prior to the eleventh week before the expected week of confinement,
7. certain other categories (members of the armed forces, the police).

An employee can claim for unfair dismissal whether he was lawfully dismissed or not.

Unfair dismissal complaints are heard in industrial tribunals. There are 3 persons involved:

1. the employer,
2. the employee,
3. a representative of the industry.

Grounds for Dismissal

If an employer is going to escape liability for unfair dismissal he must show that he acted reasonably and give his reasons for dismissal to the employee in writing.

1. the employer must satisfy the tribunal that he complied with the dismissal procedures which a reasonable employer could and should have applied,
2. the employer must have carried out the contractual appeal process,
3. where conduct is the main reason the employer must show that at the time of the dismissal he believed the employee was guilty of misconduct,
4. during the disciplinary hearings and the appeal process the employer must have been fair to the employee (the employee must have been heard and allowed to put his case properly).

Whether a dismissal is fair or not is always a question of fact for the particular case and tribunal.

Fair or unfair dismissal depends also upon the terms of the contract (e.g. refusing to work at nights when there is a contractual term providing for that, the dismissal will be fair).

Employee’s contributory fault

This can reduce the compensation payable to the employee (e.g. when the employee is often late for work and one morning the employer sacks him).

Frustration of the contract

A contract of service is frustrated by incapacity, e.g. sickness, if that incapacity makes the contract substantially impossible of performance at a particularly vital time. If the contract has been so frustrated then a complaint of unfair dismissal is not available.

There are some unacceptable reasons for dismissal:

1. dismissal in connection with trade unions,
2. unfair selection for redundancy,
3. industrial action,
4. dismissal of pregnant employee (unless incapability can be proved),
5. refusal to take a woman back after pregnancy.
6. pressure on the employer to dismiss unfairly (by trade unions or other workers),
7. transfer of business.

Remedies for unfair dismissal

1. conciliation (case heard by a conciliation officer before sent to the tribunal),
2. reinstatement or re-engagement (rarely exercised by the tribunals),
3. compensation (basic, compensatory, additional and special awards).

Time Limits

A claim for compensation against an employer must reach the tribunal within three months of the date of termination of employment (for dismissals in connection with strike or other industrial action the period is six months).

Discriminatory dismissal

Industrial tribunals also hear complaints about dismissal on grounds of sex, marital status, race, color or religion.

Direct discrimination provides ground for an employee to claim for unfair dismissal.

According to the EPCA, a person discriminates:

1. against a woman in any relevant circumstances if on the ground of her sex he treats her less favorable than he treats or would treat a man.
2. against a married person of either sex in any relevant circumstances if on the ground of his or her marital status he treats that person less favorable than he treats or would treat an unmarried person.
3. against another in any relevant circumstances if on racial ground he treats that other person less favorable than he treats or would treat other persons.

Copyright ©, 1997 Marinet