Where an employee has two years, or more, continuous service, an employer must have (1) a fair reason to dismiss them and (2) follow a fair procedure to dismiss them.
The potentially fair reasons to dismiss are:
- Misconduct at work;
- Lack of capacity (or qualifications) to do the job;
- Redundancy;
- A statutory requirement;
- Some other substantial reason.
A fair procedure should be a procedure that is in accordance with the ACAS Code of Conduct.
In certain circumstances, the employer must also show that the decision to dismiss is within the range of reasonable responses (to a particular situation) available to an employer.
There are certain limited cases where a dismissal will be automatically unfair and in those situations the employee will not need to have been employed for two years. If that is the case, the employee only has to be able to demonstrate to a Tribunal that the dismissal was for one of the automatically unfair reasons to succeed in their claim. These include, for example, being dismissed for:
- Membership (or non-membership) of a Trade Union or for Trade Union activities;
- Pregnancy or any other reason connected with the pregnancy;
- For making a protected disclosure (whistleblowing);
- Discriminatory reasons.
Discrimination claims are complicated and it is recommended that any employee who believes that they are being discriminated against takes legal advice. Our experienced team would be pleased to provide that advice.
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