Do I have a legal case for unfair dismissal or discrimination?
Losing your job or facing discrimination at work can be distressing. If you feel your employer has acted unlawfully, you may have the right to pursue legal action. However, it’s important to understand the legal tests applied in cases of unfair dismissal, constructive dismissal, and discrimination before proceeding. In this guide, we’ll break down the key legal concepts and help you assess whether you have a strong case for an Employment Tribunal in the United Kingdom.
Unfair dismissal
Unfair dismissal occurs when your employer terminates your employment without a fair reason or fails to follow a fair process. Under the Employment Rights Act 1996, employees have the right not to be unfairly dismissed if they meet specific criteria.
A tribunal can find a dismissal to either be procedurally unfair or substantively unfair, or both. Procedurally fair refers to the process (the investigation, disciplinary and appeal meetings etc), whereas substantively fair refers the reasonableness of the decision making.
In unfair dismissal cases the burden of proof is on the employer to prove that they had a valid reason for your dismissal. This means that following an ET1 submission, the Tribunal considers your dismissal unfair until the employer shows otherwise.
Legal test for unfair dismissal
In cases of misconduct, Employment Tribunals use the Burchell Test to assess whether a dismissal was fair and reasonable. This test involves three key questions:
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Did the employer genuinely believe the employee was guilty of the alleged misconduct or incapable of performing their duties?
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The Tribunal examines whether the employer acted in good faith and had reasonable grounds to believe the reason for dismissal. The tribunal will want to know what evidence was considered and whether it was sufficient to dismiss on the balance of probabilities.
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Did the employer carry out a reasonable investigation?
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A fair process includes gathering evidence, holding an investigation meeting, and giving the employee a chance to respond. It is for the employer to show their decision to dismiss was made after the investigation and not before.
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Was dismissal a reasonable response in the circumstances?
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The Tribunal will assess whether dismissal was within the range of reasonable responses that an employer could take. Alternatives could include warnings, demotions, training, moving teams or mediation.
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If your employer fails any part of the Burchell Test, you may have a case for unfair dismissal.
It is important to note that the Burchell Test does not require the employee to have been guilty of misconduct. Even if an employee is able to prove their innocence at a later stage, their employer may still be considered reasonable in dismissing them if they pass the test outlined above.
The Tribunal is not there to redo the disciplinary process and come to a conclusion, but rather to determine how reasonable the employer was. It is therefore not so important to focus on what the facts of the case are, but rather focus on how your employer interpreted the facts and came to their conclusion. It is a very good idea to be familiar with the ACAS Code of Practice, which clearly outlines what is considered procedural fairness.
Constructive dismissal
Constructive dismissal happens when an employee resigns due to their employer’s breach of contract, making it impossible to continue working. In these cases, the employee argues that the employer’s actions effectively forced them to quit.
In constructive dismissal claims, the burden of proof is on the employee. This means that it is your responsibility to prove to the Tribunal that your employer breached your contract and/or the implied trust and working relationship, and terminating your own contract was the only viable option.
Legal test for constructive dismissal
The Tribunal considers the following factors:
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Was there a fundamental breach of contract by the employer?
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Examples include failure to pay wages, bullying, harassment, or unreasonable changes to job roles.
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Did the employee resign in response to the breach?
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The resignation must directly result from the breach, not other unrelated factors. The best way to show this is through a resignation letter which clearly and unapologetically outlines your reasons.
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Did the employee act promptly?
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If an employee delays resigning after the breach, it may weaken their case, unless you can show you delayed because you were doing everything you could to resolve the issue first. A resignation with the intent of claiming constructive dismissal should be instantaneous with no notice period worked.
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Workplace discrimination
Discrimination occurs when an employee is treated unfairly due to a protected characteristic under the Equality Act 2010. These characteristics include age, disability, gender reassignment, marriage or civil partnership, pregnancy, race, religion, sex, or sexual orientation.
In discrimination cases the burden of proof is initially on the employee to show that the alleged discriminatory act happened. Once this has been established, the burden of proof is shifted to the employer to show that the reason for the act was not due to a protected characteristic and therefore not discrimination.
Legal test for discrimination
Direct vs. indirect discrimination
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Direct discrimination: Occurs when an employer treats someone less favourably because of a protected characteristic. For example, refusing to promote an employee due to their race.
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Indirect discrimination: Happens when a workplace policy disadvantages a group of people sharing a protected characteristic. For example, a dress code that disproportionately affects certain religious groups.
Using comparators to prove discrimination
In discrimination cases, Tribunals will rely on comparators to determine whether unfair treatment occurred:
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Actual comparator: Someone in a similar situation but without the protected characteristic. For example, if a woman claims sex discrimination, the comparator might be a male colleague in the same role.
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Hypothetical comparator: If no actual comparator exists, the Tribunal considers whether a hypothetical person without the protected characteristic would have been treated differently.
It is vital to use comparators when claiming for discrimination, so ensure to include this in your ET1 form and your witness statement if possible. Actual comparators are best but the Tribunal will consider hypothetical comparators. The middle ground is using evidential hypothetical comparators, which is highlighting a real person and suggesting how the employer may have acted towards them if they were in the same scenario as you. For example, if employee A was a female dismissed for lying, she might point to employee B who is male and had previously lied, but was not dismissed. The scenarios were different and so employee A is not an actual comparator, but the Tribunal could use this evidential hypothetical comparator to help form their decision in whether employee A was discriminated against due to her sex.
Assessing your legal case: Key considerations
For unfair dismissal claims
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Evidence: Gather documentation, such as emails, meeting notes, or contracts, to show the dismissal lacked a fair reason or process.
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Procedure: Check whether your employer followed disciplinary procedures outlined in your contract, staff handbook and per the ACAS Code of Practice.
For constructive dismissal claims
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Breach of contract: Identify specific actions by your employer that breached your employment contract.
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Timing: Ensure your resignation was clearly and directly linked to the breach and file your claim promptly.
For discrimination claims
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Protected characteristic: Identify the characteristic you believe led to unfair treatment.
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Type of discrimination: Identify whether you have suffered indirect or direct discrimination.
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Comparators: Determine whether you can provide an actual or hypothetical comparator to support your case.
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Impact: Show how the discriminatory treatment negatively affected you, such as loss of income or emotional distress.
How strong is your legal case?
To evaluate your case’s strength, consider the following:
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Can you provide evidence?
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Strong evidence, such as written records, audio recordings or witness statements increases the likelihood of success. So many Tribunal cases are lost simply because they rely too heavily on ‘he said/she said’, rather than having concrete proof that events happened. Whilst a Tribunal can and will make inferences, and your witness testimony under oath is considered, it’s important to be realistic when considering the strength of your evidence.
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Did your employer follow legal procedures?
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For dismissal cases, an employer’s failure to follow fair processes strengthens your claim. Even if it is obvious to everyone you committed an act of gross misconduct, your employer must still provide you with an adequate opportunity to explain your case and present any evidence or mitigating circumstances, along with the option to appeal, to ensure fairness.
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Have you met legal deadlines?
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Missing the time limits for filing a claim can prevent you from pursuing your case. In unfair dismissal claims, this is three months minus one day from the dismissal, not including any ‘paused’ time for ACAS early conciliation. For discrimination cases, it is three months minus one day from the date of the act of discrimination, or the last act of discrimination if there are multiple and they are clearly connected. In a few cases, such as equal pay claims and dismissal due to strike action there is a six month minus one day time limit.
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Conclusion: Know your rights and next steps
Understanding the legal tests for unfair dismissal, constructive dismissal, and discrimination is crucial when considering whether to pursue a claim. By focusing on the Burchell Test, contract breaches, and comparators, you can assess the strength of your case and decide on the best course of action. If you’re unsure, seek advice from a legal professional or advisory service to guide you through the process and protect your rights.
