As claims for Unfair Dismissal must be brought within 3 months it is very important to decide exactly when the 3 month period actually starts, this is known as the "Effective Date of Termination" (EDT). This is not always the date that the employee is told that they are dismissed. If an employee is given notice, the notice starts from the day after it was given.

The 3 months starts to run in the following circumstances:

Notice Period
The same day that the notice period ends. It does not matter if the notice period is worked through or not or even whether the employer actually gives the right amount of notice.

Summary Dismissal (i.e. dismissal without notice)
The 3 months runs from the date of Summary Dismissal. Dismissal without notice usually happens when the employee commits a serious act, for example theft or assault.

Payment in Lieu (i.e. payment instead of notice)
Where the employer pays the employee for their notice period, but does not ask them to work through the notice period. The 3 months runs from the date of dismissal.

Appeals & Disciplinary Procedures
If the employer’s procedures to appeal against dismissal are used and at the end of the procedure the original decision is confirmed then the original date of dismissal stands. As most procedures take over 3 months the employee would not be able to bring an Unfair Dismissal claim. If an employee is only suspended during the employer’s procedures the 3 months only starts to run from the decision to actually dismiss. Some employment contracts do state that the 3 months only runs from after the appeal & disciplinary procedure has ended. If an employee has an employment contract the disciplinary procedure may be included within the contract.

The "Effective Date of Termination" can sometimes be extended. For example where an employee is summarily dismissed 1 week before the 1 year's continuous employment comes into effect. However, the EDT will not be extended if the summary dismissal is justified. The Employment Tribunal will look to see if summary dismissal is justified. This extension can also be used in Constructive Dismissal cases.

See Constructive Dismissal.

The best advice is that if an employee wishes to consult a solicitor they should do so as soon as they are dismissed or suspended, this will give the solicitor time to investigate the case.

In the meantime if there is a company procedure the employee can still go through it as long as they do not miss the 3 month deadline.

Extensions to the 3 month limit have been allowed for the following reasons.
 

• Where the employee has been ill.
• Incorrect advice from Job Centre or Employment Tribunal staff.
• Delay due to the postal service.
• New evidence comes to light later making a claim possible.

Extensions are not available for the following:
 

• The employee did not know they could claim.
• If the employee used the employer’s appeal or disciplinary procedures instead.
• If the employee waited for other legal action connected with the dismissal to end.
• A solicitor or legal advisor gave incorrect advice.

• An employee cannot claim Unfair Dismissal if they are 65 or over.
• The employee is at the normal retirement age for their job with the employer.

Some employers have a lower retirement age than 65 or they can have a higher retirement age.

This does not apply if the dismissal is linked to one of the Unfair Dismissal Exceptions. For example, if the employee was dismissed for belonging to a Trade Union.

Certain groups cannot rely upon Unfair Dismissal, this is done for reasons of practicality, for example:
 

• Members of the armed forces, members of the police service, employees working for government departments where a national security certificate has been issued, share fishermen.
• Employees who are working under illegal contracts.

The illegal part of the contract can be removed and the rest remain so that they can claim Unfair Dismissal, but only if they were unaware of the illegality and did not benefit from it. Not knowing the law in a certain situation is no excuse, the employee must have been unaware that a certain practice was actually going on.

This is where the employee leaves their job due to the employer’s behaviour. For example, the employer has made the employee’s life very difficult and the employee feels that they cannot remain in their job. When this happens the employee’s resignation is treated as an actual dismissal by the employer, so the employee can claim Unfair Dismissal. The employer's actions must have amounted to a fundamental breach of contract.

Examples of Constructive Dismissal can include:
 

• Not supporting managers in difficult work situations.
• Harassing or humiliating staff, particularly in front of other less senior staff.
• Victimising or targeting particular members of staff.
• Changing the employee’s job content or terms without consultation.
• Making a significant change in the employee’s job location at short notice.
• Falsely accusing an employee of misconduct such as theft or of being incapable of carrying out their job.
• Excessive demotion or disciplining of employees.

An employee can resign over one serious incident or due to the build up of a number of incidents. However, the employee must resign soon after the incident in order to be able to rely upon it. Generally the actions of the employer must be a serious breach of contract.

An employee being constructively dismissed only proves that they were dismissed, it does not automatically prove that the dismissal was unfair. The employee has to go on and prove that the dismissal was also unfair.

This can be a tricky area, an employee can resign and claim Constructive Dismissal due to the employer’s behaviour, but the employer could turn around and say that he (the employer) breached the employment contract, but that it was done, for example, because of the reorganisation of the business. The chances are that the employer will be given the benefit of the doubt. The reason for this is that Employment Tribunals do not like to interfere with business management.

If on the other hand the employee resigned because he or she thought that they had been treated too harshly over a disciplinary matter, it would be easier for the Tribunal to look for and find unfairness.

If the Constructive dismissal is connected to one of the Unfair Dismissal Exceptions it will be simple to prove that it was unfair.

Any claim for Unfair Dismissal must go through a 2 stage test.

Was the dismissal for a fair reason?
And if the dismissal was for a fair reason

Was the dismissal dealt with fairly?
This means that an employer can dismiss an employee for a perfectly valid reason, but the way in which it was handled was unfair and so an Unfair Dismissal claim can be made.

Reasons for Dismissal
The following is a list of fair reasons for dismissing an employee and points that an Employment Tribunal will consider.

Capability
This is split into several areas.

Qualifications - does the employee have the necessary qualifications for the job and is a particular qualification actually needed for this type of job ?

Incompetence - this can be repeated incompetence or a very serious individual incident, but was the employee trained, were warnings given ?

Health - an employee who is genuinely ill on a regular basis, what was the illness, how long would the employee be off, did the employer consider alternative work for the employee ?

Conduct
Here are some of the possible situations where an employee’s conduct may have given the employer good reason to dismiss them:
 

• Theft.
• Corruption, including taking bribes.
• Being drunk at work.
• Taking drugs at work.
• Abusive behaviour.
• Leaking confidential documents or information.
• Hacking into computer files, this includes stealing passwords.
• Being absent from work on a regular basis.
• Constantly late for work.
• Unsuitable work clothes or appearance.
• Taking holidays without informing your employer.
• Unsuitable conduct with other members of staff during office hours.
• Unsuitable conduct outside work hours that has an impact on the employee's job.
• Even telling your employer exactly what you think of them.

All of the above may be persistent behaviour for which an employee has received earlier warnings or they may be individual incidents that are of a serious nature.

The tribunal will also consider the following:

• Was the conduct of the employee looked into thoroughly?
• Did the employer believe that the employee committed the offence?
  The employer does not need absolute proof in a case of dishonesty, but there must be strong evidence of the dishonesty for them to dismiss the employee.

Redundancy
The employer must have a fair procedure for selecting who is going to be made redundant. Once the method has been decided upon the employer must stick to it. One of the most commonly used methods is "last in - first out" An employer cannot select an employee for redundancy if it is based upon one of the Unfair Dismissal Exceptions.

Breaking the Law
For example a foreign worker whose work permit has expired, to continue to employ them would break the immigration laws. However, the employer should check whether the situation can be made legal before dismissing the employee.

Any Other Reason
This is very wide and is used to cover virtually every other possible reason. For example, where a business is being used and some employees refuse to reorganise along with it or where they are no longer considered suitable. For example an employee who refused to use computers when they were installed despite training was dismissed, this was said to be a valid reason to dismiss. It can include dismissing an employee because an important client demands it.

The test here is whether the employer used a fair procedure and was it reasonable for the employer to finally decide to dismiss the employee once the procedure had been carried out.

Any Employment Tribunal would consider some of the following:
 

• Was the employee given a fair hearing by the employer?
• What evidence was used at the hearing and was it all used?
• Did the employee have a representative at the hearing or a Trade Union official?
• If there was more than one employee involved were they all treated in the same way?
• Had the employee done this before?
• Did the employer consider warnings, were these used in the past?
• Did the employer consider the overall performance of the employee, for example did the employee previously have a long record of good work and behaviour?
• Could the employer have disciplined the employee instead of dismissing them?
• Did the employee have an effective right of appeal against the decision?
• Was the whole procedure carried out in the same way as previous procedures, if not how did it differ and why?