Generally, an employee who has been employed continuously for a minimum of two years has the right not to be unfairly dismissed.
An unfair dismissal must take place by you being dismissed in one of three ways:
- termination by the employer;
- expiry of a limited-term contract;
- or constructive dismissal
(section 95(1), ERA 1996)
The dismissal of a qualifying employee will be unfair unless:
- The employer can show that the reason for the dismissal was one of the five potentially fair reasons (section 98(1) and (2), ERA 1996). These are: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction and “some other substantial reason” (SOSR) (section 98 ERA 1996).
- The Employment Tribunal find that, in all the circumstances the employer acted reasonably in treating that reason as a sufficient reason for dismissal (section 98(4), ERA 1996)
It is important to note that only employees have the right not to be unfairly dismissed. You are an employee if you are “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment” (section 230(1)).
One further issue to consider is that the two year qualifying period does not apply in a range of circumstances. These are listed in section 108(1) of ERA 1996 and include:
- Automatically unfair dismissals;
- Medical suspension;
- Reason for the dismissal is connected with your service in the reserve forces;
- Political opinions or affiliation
For more information, please do not hesitate to speak to our Barrister who can offer specialist guidance.