Please note: This page was written in 2007 for the original T-Vox Action Through Education initiative. Links may not work, as the page is now old and potentially out of date. We are in the process of updating this page for the 2015 Initiative.
A guide to employment legislation in the UK. Part of the T-Vox Action Through Education initiative. You can download a copy of this document as a PDF here.
I’ve been fired! Can my employer do this?
Whether an employee can be fired or not is determined in UK law by the legislation dealing with Unfair Dismissal and Wrongful Dismissal; which limit the reasons for which an employee can be fired. The legally recognised acceptable reasons for dismissal are limited to:
- Incapability due to ill health, if the chances of an improvement in the employee’s health have been considered and it has been found that the employee cannot continue to perform their required function;
- Incapability due to incompetence, although it is important to note that the employee should have been suitably trained and supervised in their role as an employee cannot be fired for incompetence if they have followed instructed working practice;
- Lack of qualifications, provided the employee claimed certain qualifications they did not possess in order to get the job or the employee has failed to gain qualifications stipulated in the contract as a requirement for the job;
- Serious misconduct, such as theft or assault;
- Persistent lateness or absenteeism, when arrival/departure times and an acceptable level of performance have been agreed;
- Redundancy when a genuine redundancy situation exists and the employee has been fairly selected;
- Reaching the end of a fixed term contract, where an end date (or end condition) for the contract as clearly stated in the terms of the contract, eg. temporary employment to cover maternity leave;
- A legal prohibition on the performance of an employee’s duties, such as a pilot losing their eyesight. However, it is important in this case to consider the possibility of employment in an alternative position in such cases; or
- The employee is an Unprotected Worker.
What is an Unprotected Worker?
Several groups of employees are not protected from unfair dismissal. These groups are known as Unprotected Workers and they include:
- Freelance agents and independent contractors;
- Employees ordinarily working outside of the UK;
- Share Fishermen; and
- Members of the Police and Armed Forces.
While Unprotected Workers are exempt from unfair dismissal, they are protected from certain inadmissible reasons for dismissal including:
- Being over the normal age of retirement (or 65, if no normal age of retirement exists for the company); and
- Having not yet completed the first year of continuous service.
What is Unfair dismissal?
Simply put, any termination of a contract of employment without good reason or without following fair procedure is likely to be seen as unfair dismissal. While the right to not be unfairly dismissed is a statutory right, there are certain qualifying conditions that must first be met before any dismissal becomes unfair (although there are exceptions to this) and there is a three month time limit on making a claim for unfair dismissal, although extension can be granted by an employment tribunal where it would not be practicable to make a claim within this three month period.
These qualifying conditions include: the employee must have been employed under a contract for a minimum continuous period of one year prior to the dismissal; the employee must have actually been dismissed (i.e. they did not resign); and the employee must be under the normal retirement age (or 65 if the employer does not have a normal retirement age). With regards to continuous employment, a transfer of business ownership or an absence from work due to sickness, injury or confinement do not count as a break in employment.
While there is usually a requirement to be continuously employed for a year prior to dismissal in order for a dismissal to qualify as unfair, there is no statutory time constraint if the dismissal is on any of the following grounds:
- Membership, non-membership or proposed membership of a trade union;
- Maternity-, paternity- or adoption-related reasons;
- Health and safety reasons;
- Assertion of statutory rights (eg. Initiating statutory grievance procedures due to discrimination);
- Refusal to work on a Sunday (if a shop or betting worker);
- Reasons connected to Working Time Regulations (eg. Refusal to accept a change in contract to extend working hours over the legal limit);
- Reasons related to securing National Minimum Wage;
- Enforcing a right to Working Tax Credits; or
- Partaking in protected industrial action (i.e. not a ‘Wildcat’ strike or similar action)
In addition to the above, dismissal is automatically unfair if it is on any of the following grounds:
- A spent conviction (or, in most cases, a failure to disclose a spent conviction);
- Unfair selection for redundancy (i.e. If the employee was selected for redundancy due to any of the above); or
- Taking parental leave or time off for dependants;
What is Wrongful Dismissal?
In the UK, the termination of an employment contract in a manner that breaches that contract is wrongful dismissal, as is an employer behaving in a manner that causes an employee to be forced to resign (which would also be Constructive dismissal). The employee is not required to have worked for a certain amount of time before this legislation is enforceable. For more detail see Wrongful dismissal.
What is Constructive dismissal?
Constructive dismissal is a form of resignation caused by a significant frustration of the employment contract on the part of the employer; i.e. the employer’s conduct has caused a fundamental breach of the contract. In such cases, the employee can resign without notice. The employee must have been in continuous employment for no less than one month and must have attempted to go through statutory grievance procedures.
In order to prove constructive dismissal, an employee must be able to prove the conduct of the employer clearly breached the contract of employment and that all reasonable steps to address the situation have been taken prior to their resignation. For more details, see Constructive dismissal.
The information here is provided for information only and is intended as a guide, not formal legal advice.