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In its simplest form, unfair dismissal is when your employment contract is terminated and your employer did not have fair reason to do so. It can also be claimed if your employer did have fair reason but handled your dismissal using the wrong procedure. You are protected by law against both these eventualities.
Reasons for dismissal
There are five main reasons why you might be fired, according to the guidelines used by employment tribunals: Capability, Conduct, Redundancy, Breaking the Law and ‘any other reason’. Each includes a variety of factors, and the last is wide open to interpretation.
A sixth reason not included above is known as ‘constructive dismissal’. This generally occurs when an employer gives you little choice but to resign due to intimidatory or abusive behaviour. This is very difficult to prove so make sure you gather as much evidence as possible before raising a case.
Proper dismissal procedures
There are right and wrong ways to fire someone. Most employers will be scrupulous in this regard, as they don’t want to find themselves on the wrong end of an employment tribunal ruling.
The key thing is for your employer to follow a formal and reasonable procedure. This will almost certainly be contained in your terms of employment or employee handbook. Typical procedures will include verbal warnings, some documented attempt to resolve the situation, an opportunity for you to defend yourself, and written final warnings before your dismissal.
In the eyes of a tribunal, your employer must have given you fair indication of the problem, and then made a serious attempt to resolve it, in line with existing policies. They cannot, for example, use one rule for you and another for someone else. The only exceptions are in the case of ‘gross misconduct’ where your employer would be within his rights to dismiss you on the spot, without warning.
What to do if you’re the victim of unfair dismissal
If you choose to go to a tribunal, it’s up to you to prove you have been unfairly dismissed, while your employer has to prove the opposite. You will need to take professional advice, either from your Trade Union, the Citizens’ Advice Bureau or from an employment lawyer.
In defending themselves, your employer needs to:
• Prove he has followed proper procedure
• Prove he has not treated you as a special case
• Prove that you had previously been made aware of all company rules
You can only go to a tribunal if you have followed the company’s normal procedure and still not achieved a satisfactory outcome. Because each side needs to demonstrate its case, you should keep copies of all correspondence, sent and received, as well as making notes of all actions and events surrounding your dismissal.
http://content.monster.co.uk/14173_en-GB_p1.asp
Before dismissing an employee for incompetence, an employer should normally have warned the employee about the standard of their work and given them the opportunity to improve. An employer should also consider whether the employee should receive further training.
Before dismissing a sick employee, an employer should consult with the employee concerning the nature and likely length of the illness. The employer should also seek medical advice relating to the employee's condition, and consider whether there might be a suitable alternative job which could be offered to the employee. Ultimately, the test is whether the employer could reasonably be expected to wait any longer for the employee.
http://www.bbc.co.uk/consumer/guides_to/employment_unfairdismissal.shtml
The test here is whether the employer used a fair procedure and was it reasonable for the employer to finally decide to dismiss the employee once the procedure had been carried out.
Any Employment Tribunal would consider some of the following:
1. Was the employee given a fair hearing by the employer ?
2. What evidence was used at the hearing and was it all used ?
3. Did the employee have a representative at the hearing or a Trade Union official ?
4. If there was more than one employee involved were they all treated in the same way ?
5. Had the employee done this before ?
6. Did the employer consider warnings, were these used in the past ?
7. Did the employer consider the overall performance of the employee, for example did the employee previously have a long record of good work and behaviour ?
8. Could the employer have disciplined the employee instead of dismissing them ?
9. Did the employee have an effective right of appeal against the decision ?
10. Was the whole procedure carried out in the same way as previous procedures, if not how did it differ and why ?
http://www.compactlaw.co.uk/monster/empf9.html