Unfair dismissal

By Tolley in association with Hannah Freeman at Old Square Chambers
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The following Employment Tax guidance note by Tolley in association with Hannah Freeman at Old Square Chambers provides comprehensive and up to date tax information covering:

  • Unfair dismissal
  • Eligibility ― an employee
  • Definition of dismissal in unfair dismissal ― has the employee been dismissed?
  • Qualifying period for unfair dismissal ― at least two years of employment
  • Particular types of employment
  • Unfair dismissal in connection with industrial action
  • Illegality
  • Unfair dismissal time limit ― was the claim presented on time?

The right not to be unfairly dismissed is a statutory right arising under ERA 1996, s 94. There are a number of qualifying conditions and exceptions. The burden of proving that the relevant qualifying conditions are met generally falls on the employee who is claiming to have been unfairly dismissed.

ERA 1996, s 94

In order to make a claim for unfair dismissal, an employee must meet the following basic conditions:

  • must be employed under a contract of employment
  • must have two years’ continuous employment (one year for those who started work before 6 April 2012) ― see the Continuity of employment guidance note
  • not more than three months have elapsed since the end of the employment

An unfair dismissal claim is within the exclusive jurisdiction of the employment tribunal (ie it cannot be brought in the courts) and must generally be made within three months of the effective date of termination (EDT). The tribunal may, however, extend the time limit where it was not reasonably practicable for the employee to present the claim in time.

Eligibility ― an employee

The right not to be unfairly dismissed is only available to employees, defined as individuals who have entered into or work under a contract of employment (ie a contract of service or apprenticeship, whether expressed or implied and whether oral or in writing).

ERA 1996, s 230(1)–(2)

The Employment Rights Act 1996 is silent with regard to territorial scope. However, case law has restricted its scope to employees working in Great Britain at the time of their dismissal unless exceptional circumstances arise that extend its scope to those working abroad. The House of Lords gave guidance in

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