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What is unfair dismissal?

Understanding unfair dismissal can help you determine whether you’re a victim of it and help inform your next steps.

What is unfair dismissal?

If your employer terminates your employment you may be able to bring a claim for unfair dismissal. Whether or not a dismissal is fair will depend on a number of factors, including your length of service, the reason for terminating your employment, and the process your employer followed (or failed to follow).

Who can bring an unfair dismissal claim?

Only ‘employees’ have the right to bring unfair dismissal claims.  Therefore, ‘workers’ and the self-employed do not have protection from being unfairly dismissed.  

In most cases, employees will need to have at least two years’ continuous employment before they have unfair dismissal rights.  

This means your employer will need to be able to demonstrate that:

 i) they had a potentially fair reason to terminate your employment,

 ii) that was the sole or principal reason for terminating your employment, and 

 iii) they followed a fair process. 

What are the potential fair reasons for dismissal?

The five potential fair reasons for dismissal are: 

  1. Misconduct - e.g. theft, bullying, or harassment of colleagues

  2. Redundancy – usually where the requirement for someone to carry out work of a particular kind has ceased or diminished or is likely to cease or diminish

  3. Capability - on either performance or ill-health grounds

  4. A statutory restriction - if by continuing to employ someone in their role the employer would be breaking the law, e.g. if you lost the right to work in the UK

  5. Some other substantial reason - e.g. business reorganisations that don’t result in redundancies, or a breakdown in working relations.

The process your employer would need to go through to fairly terminate your employment will depend on which potential fair reason they are relying on. 

Every situation is unique and so when considering whether a dismissal was fair the employment tribunal will have regard to all of the circumstances of the case, including the size and administrative resources of the employer.  It is worth noting the Tribunal is not there to substitute its own view for that of your employer.  The Tribunal should instead decide whether your employer’s actions fell within the range of reasonable responses of a reasonable employer.

There are some circumstances where you do not have to have two years’ service in order to be able to bring an unfair dismissal claim, including being dismissed because: 

  • Of a protected characteristic, i.e. age, sex, race, sexual orientation, disability, gender reassignment, religion or belief, marital or civil partnership status, and pregnancy and maternity

  • You took maternity, paternity, or adoption leave.

  • You raised concerns about health and safety.

  • You undertook functions of an elected employee representative.

  • You ‘blew the whistle’

  • You took part in certain trade union activities.

The deadline to issue proceedings in the employment tribunal is three months less one day from the date your employment ends. Prior to issuing you need to contact the conciliation service ACAS to commence Early Conciliation (EC). EC is a free service designed to give individuals and employers a chance to resolve matters before proceedings are issued. If EC is unsuccessful you will be given a certificate number, which you will need to put on the claim form you submit to the tribunal. The actual deadline to commence a claim in the Tribunal will depend on when you started EC and the date the certificate was issued.

It can be difficult to understand what rights you may have, and what to do if you have been dismissed or are facing the threat of dismissal.  Speak to our specialist Employment Solicitors at Which? Legal to help understand your options and what action you may be able to take.

 

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