LRD guides and handbook December 2023

Unfair dismissal law – An LRD guide for union reps

Introduction

Introduction [page 1] (315 words)

A high proportion of a union rep’s work is about representing members in disciplinary or grievance hearings, which makes a sound knowledge of the ...
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Chapter 1

1. The legal framework [page 6] (462 words)

The law on unfair dismissal is governed in England, Wales and Scotland by Part X (sections 94 to 134A) of the Employment Rights Act 1996 (ERA 96) and ...
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Difference between wrongful and unfair dismissal [page 7] (373 words)

Was there a dismissal? [page 7] (272 words)

Resignations [page 8] (535 words)

Mutual termination [page 9] (184 words)

Right to notice [page 10] (85 words)

Notice by the employer [page 10] (981 words)

Notice by the employee [page 12] (407 words)

Fair reason for dismissal [page 13] (1,821 words)

The right to written reasons for dismissal [page 17] (90 words)

Reasonableness [page 17] (262 words)

The band of reasonable responses [page 18] (1,878 words)

Codes of practice [page 22] (359 words)

Fair procedures – general principles [page 22] (1,815 words)

The statutory right to be accompanied [page 27] (1,207 words)

Chapter 2

2. Capability or qualifications [page 30] (310 words)

The first fair reason for dismissal relates to the capability or qualifications of the employee for performing work of the kind which they were ...
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Use of surveillance [page 30] (637 words)

Long-term sickness absence [page 32] (858 words)

Frequent short-term absences [page 34] (1,592 words)

Performance dismissals [page 37] (1,171 words)

Chapter 3

3.Conduct [page 41] (263 words)

The second fair reason for dismissal under section 98(2) Employment Rights Act 1996 (ERA 96) relates to the conduct of the employee. A conduct ...
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Investigation [page 41] (82 words)

Standard of proof [page 42] (981 words)

Suspicion of guilt [page 44] (146 words)

Reliance on past incidents [page 44] (383 words)

Limits of investigation [page 45] (160 words)

Right to be accompanied [page 45] (84 words)

Suspension [page 46] (910 words)

Disciplinary hearing [page 48] (294 words)

Warnings [page 48] (596 words)

Decision to dismiss [page 50] (503 words)

Gross misconduct [page 51] (1,018 words)

Alcohol or drugs [page 53] (958 words)

Chapter 4

4. Redundancy [page 56] (391 words)

Redundancy is a fair reason for dismissal. It applies when an employee is dismissed in the following circumstances, as specified in section 139 of ...
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Automatically unfair redundancy [page 57] (431 words)

Reasonableness [page 58] (449 words)

Challenging the selection process [page 59] (230 words)

Restructuring exercises [page 59] (553 words)

Right to be accompanied [page 61] (115 words)

Chapter 5

5. Contravention of a legal requirement [page 62] (122 words)

The fourth fair reason for dismissal is that the employee could not continue to work in the position that they held without contravention of any ...
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Loss of driving licence [page 62] (72 words)

Immigration status [page 62] (293 words)

Chapter 6

6. Some other substantial reason [page 64] (721 words)

“Some other substantial reason” (SOSR) is the fifth and final fair reason for dismissal under the Employment Rights Act 1996 (ERA 96). It is a ...
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Changes to terms and conditions [page 65] (149 words)

Fire and rehire [page 66] (981 words)

Deemed dismissal [page 68] (306 words)

Constructive dismissal [page 68] (167 words)

Retirement [page 69] (360 words)

Non-renewal of a fixed-term contract [page 70] (157 words)

Breakdown in trust and confidence [page 70] (136 words)

Third party pressure [page 70] (113 words)

Refusal to sign a restrictive covenant [page 71] (96 words)

Manifesting offensive political opinions [page 71] (95 words)

Return of original post-holder [page 71] (103 words)

Employees accused of a criminal offence [page 71] (234 words)

Chapter 7

7. Constructive dismissal [page 73] (227 words)

A constructive dismissal takes place when an employee resigns in response to conduct by their employer that amounts to a fundamental breach of ...
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Fundamental breach [page 73] (575 words)

Resignation in response to the breach [page 75] (132 words)

Affirmation of contract [page 75] (654 words)

Last straw cases [page 76] (241 words)

Raising a grievance [page 77] (279 words)

Fairness [page 78] (415 words)

Bringing a claim [page 79] (102 words)

Chapter 8

8. Automatically unfair dismissal [page 80] (356 words)

There are some reasons for dismissal that are automatically unfair. This means that once it has been established that the reason for dismissal is one ...
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Flexible working [page 81] (22 words)

A business transfer (TUPE) [page 81] (59 words)

Trade union membership or activities [page 81] (214 words)

Trade union recognition [page 81] (26 words)

Blacklisting [page 82] (31 words)

Acting as a companion [page 82] (42 words)

Industrial action [page 82] (390 words)

Enforcing a statutory right [page 83] (90 words)

Spent convictions [page 83] (35 words)

Part-time, fixed-term or employed agency workers [page 83] (72 words)

Employees on zero hours contracts [page 83] (39 words)

Health and safety [page 83] (248 words)

Refusing to work on Sundays [page 84] (25 words)

Employee representatives and pension fund trustees [page 84] (56 words)

Pension auto-enrolment [page 84] (29 words)

National Minimum Wage and working time rights [page 84] (85 words)

Whistleblowing [page 85] (20 words)

Chapter 9

9. Settling a claim [page 86] (62 words)

An employee and employer can reach a legally binding settlement of an employment dispute at any stage. They do not have to wait until a tribunal ...
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Settlement agreements [page 86] (606 words)

Without prejudice discussions [page 87] (127 words)

Protected conversations [page 87] (586 words)

Improper behaviour [page 89] (166 words)

Chapter 10

10. Appeals [page 90] (564 words)

The employee should be given the opportunity to appeal the decision to dismiss and the appeal should be heard without delay. Refusing to allow an ...
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Chapter 11

11. Bringing a tribunal claim [page 92] (151 words)

To bring a claim for unfair dismissal, the individual must be an employee and have been employed by the employer for at least two years (one year in ...
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Calculating length of service [page 92] (48 words)

Continuous service [page 92] (773 words)

The effective date of termination (EDT) [page 94] (217 words)

Time limits [page 95] (137 words)

Extending time to bring an unfair dismissal claim [page 95] (527 words)

Effect of Acas EC on time limits [page 96] (537 words)

Acas/LRA early conciliation [page 97] (291 words)

The role of the conciliator [page 98] (317 words)

Illegality and unfair dismissal rights [page 98] (265 words)

Interim relief [page 99] (588 words)

Reinstatement or re-engagement [page 100] (628 words)

Compensation [page 102] (70 words)