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United Kingdom - Substantive requirements for dismissals


Substantive requirements for dismissals (justified and prohibited grounds) - United Kingdom - 2019    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • Sec. 92 ERA as amended by the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012): Upon request, an employee is entitled to a written statement of the reasons for dismissal provided than he has been employed for at least two years [New as of 6 April 2012: previously 1 year].
    However employees dismissed during pregnancy, maternity or adoption leave have the right to receive such statement without having to request it and regardless of the length of service.


Valid grounds (justified dismissal): any fair reasons
Remarks:
  • There are six potentially fair reasons for dismissal under section 98 of the ERA:
    - the employee's capability or qualifications for performing work of the kind he or she was employed to do;
    - the employee's conduct;
    - the employee's retirement;
    - the employee's redundancy;
    - the employee could not continue to work in the position which he or she held without contravention (either on his or her part or that of the employer) of a statutory duty or restriction;
    - "some other substantial reason" justifying the dismissal of an employee holding the position that he or she held.


Prohibited grounds: pregnancy; maternity leave; filing a complaint against the employer; race; sex; sexual orientation; religion; trade union membership and activities; disabilities; parental leave; whistle blowing; adoption leave; raising occupational health and security concerns; performing jury service; conviction or failure to disclose a conviction; ethnic origin
Remarks:
  • A dismissal is also automatically unfair if the principal reason for it involves:
    * leave for family reasons (includes pregnancy, maternity/paternity/adoption/parental leave): sec. 99 ERA;
    * employee representatives: sec. 103 ERA, trade union membership and activities and refusal to belong to a trade union: sec. 152 (1) of the Trade Union and Labour Relations (Consolidation) Act (TULRCA);
    * bringing proceedings against the employer to enforce a statutory right: sec. 104 ERA; (see also 104A to 104D ERA: enforcement of a right related to national minimum wage, flexible hours, tax credit and pension enrolment)
    * race, ethnic or national origin: Sec 4 (2) b and 4 (4A) of the Race Relations Act 1976 (c. 74) as subsequently amended;
    * sex: sec. 6 (2) of the Sex Discrimination Act 1975 (c. 65), as subsequently amended;
    * disability: sec. 4 (2) b) of the Disability Discrimination Act 1995 8c. 50) as subsequently amended.
    * age: sec. 7 (2) d) of the The Employment Equality (Age) Regulations 2006 (No. 1031), as amended;
    * religion and belief: sec. 6 (2) d) of the Employment Equality (Religion or Belief) Regulations 2003 (No. 1660), as amended;
    * sexual orientation: sec. 6 2) d) of the The Employment Equality (Sexual Orientation) Regulations 2003 (No. 1661), as amended;
    * safety representatives raising health and safety concerns: sec. 100, ERA;
    * jury service: sec. 98B ERA;
    * New in 2010: a prohibited blacklist of trade union members in certain circumstances (sec. 104E ERA, as inserted by Regulation 12 of the Employment Relations Act 1999 (Blacklists) Regulations 2010.

    In addition, a dismissal is also automatically unfair if the principal reason for it involves:
    - unfair selection for redundancy (sec. 105 ERA), transfer of an undertaking (sec. 7(1), Transfer of Undertakings (Protection of Employment) Regulations, 2006), (i.e. unless the dismissal is justified by an economic, technical or organizational reason entailing a change in the workforce), conviction of an offence or failure to disclose such a conviction when the conviction is 'spent' within the meaning of the Rehabilitation of Offenders Act 1974 (sec. 4(3)(b));
    - industrial pressure exercised on the employer (e.g. if employees threaten to start industrial action unless a certain employee is not dismissed) (sec. 107, ERA);
    - shop workers and betting workers who refuse Sunday work (sec. 101, ERA); and
    - trustees of occupational pension schemes (sec. 102, ERA).


Workers enjoying special protection: no protected groups
Remarks:
  • No additional protection for specific category of workers besides the prohibition of dismissals based on the above-mentioned reasons.