Before bringing a complaint of unfair dismissal, an employee will normally need to have been in two years of continuous employment with the same employer. In schools, however, there are some circumstances where employment under different employers still counts as continuous.
One is when a school is transferred to a different employer, which most commonly occurs when a school becomes an academy. Another is when an employee moves from being employed by the governing body of a school (such as an aided or foundation school) to being employed by the LA that maintains the school, and vice versa.
However, there are also around 25 categories of dismissal (sometimes referred to as ‘impermissible reasons’) where dismissal is automatically unfair and no qualifying period of service is required.
Time limits and fairness
Strict time limits apply to bringing claims. Most claims have to be started by filing details with the Advisory, Conciliation and Arbitration Service (ACAS) under early conciliation procedures within three months, starting with the date of dismissal.
If the employer believes that the employee doesn’t have the requisite term of service, or that the claim hasn’t been brought in time, the employer can apply to have the claim dismissed.
Potentially fair reasons for dismissal are conduct, capability, illegality, redundancy and ‘some other substantial reason’ (SOSR). If the dismissal is not for one of these reasons, it will be unfair. If it is for one of these reasons, then the employment tribunal (ET) will go on to consider whether the dismissal was ‘reasonable’.
In most unfair dismissal cases involving schools, the reason is clear and the issue is ‘reasonableness’. When considering ‘reasonableness’, the ET must not substitute its own opinion for the opinion of the employer. That applies to both the employer’s findings in relation to the reason for dismissal, and to the decision to dismiss.
This is fundamental to understanding the law of unfair dismissal and the role of the ET. Let’s apply it to those different types of dismissal.
Conduct
Following a fair investigation, the employer must form a genuine belief based on reasonable grounds that the employee was guilty of conduct which justifies dismissal. The ET does not decide whether the employee was or was not guilty of the misconduct alleged, or whether they (the ET) would have dismissed.
The employer must act within ‘a band of reasonableness’. An employer may be found to have stepped outside this band of reasonableness and dismissed unfairly if, for example, the investigation is conducted with a view to establishing the employee’s guilt, rather than get to the truth.
Dismissal for a first offence will usually be unfair, unless the offence is gross or serious misconduct.
Capability
This includes dismissals for both lack of competence and illness. Again, the principles of reasonableness apply here – the ET must not substitute its opinion for the opinion of the employer.
In competence cases, the employer should be able to demonstrate that the employee was given a reasonable opportunity to address the shortcomings but failed to do so within a reasonable period. The ET won’t generally decide whether or not the employee was competent.
Illness can cover both long-term absence and frequent short-term absences. The acid test for the ET will be whether the employer could reasonably have been expected to wait any longer before dismissing the employee.
Redundancy
Here, there must be a ‘redundancy situation’ – that is, reduced requirement for workers to carry out work of a particular kind, or in a particular place. The reduced requirement is for workers, rather than work; if an employer can get the same work done with fewer employees, that is a redundancy situation.
It’s generally up to the employer to decide how it selects employees for redundancy and who should be in the ‘pool’ for possible selection, but this should be objective and nondiscriminatory.
Redundancy dismissals can be unfair if the employer fails to take reasonable steps to offer the redundant employee(s) any available alternative employment.
Some other substantial reason [SOSR]
This is potentially wide in scope, but the cause must be ‘substantial’. It’s not a catch-all for cases where the employer can’t provide any other fair reason. It may, for example, cover the expiry of a genuine fixed term, such as cover for illness, or maternity absence where the substantive post holder is returning. Where a breakdown in relationships is affecting the way the school is run it may be fair to dismiss for SOSR, even if it can’t be established that the cause is conduct or competence.
(It should be noted that cases of unfair dismissal for reasons of illegality are fairly uncommon).
Constructive dismissal
When an employee resigns, with or without notice, in circumstances where he or she is entitled to resign without notice because of the employer’s conduct, this is treated as a dismissal, giving rise to a right to bring a claim for unfair dismissal.
The employer must have committed a breach of the employee’s contract of employment – one so serious as to amount to a fundamental or repudiatory breach. The employee must have resigned because of the breach, and must have acted promptly in resigning – otherwise he or she may be treated as having affirmed the contract.
There is an implied term in every employment contract that the employer will not conduct itself, without reasonable cause, in a manner calculated or likely to undermine the relationship of trust and confidence between employer and employee. Constructive dismissal cases arising in schools often revolve around alleged breaches of this term.
Constructive dismissals can, in principle, be fair – but because the employee must show that the employer has committed a breach of contract, it’s usually difficult for the employer to successfully argue that the dismissal was fair.
