The ultimate guide to unfair dismissal
Losing a job can be a challenging experience, but if you believe your dismissal was unfair, you may have rights to protect you under UK employment law. In the UK, laws such as the Employment Rights Act 1996 provide guidance on what makes a dismissal fair or unfair, helping to ensure that employees are treated justly in the workplace.
This guide will walk you through the key aspects of unfair dismissal, including who can claim, common reasons for unfair dismissal, and how to identify a fair or unfair dismissal. By the end, you’ll have a clear understanding of your rights and options if you believe you’ve been dismissed unfairly.
What is unfair dismissal?
Understanding unfair dismissal and how it differs from other types of job termination
Unfair dismissal occurs when an employer ends an employee’s contract of employment without a fair reason or without following a fair process. In the UK, employees have the legal right to be dismissed only under specific, reasonable circumstances, and employers must follow a fair and thorough process before making the decision to dismiss.
Dismissal vs. resignation
It’s essential to differentiate between being dismissed and resigning:
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Dismissal: This happens when an employer decides to end your employment. In cases of dismissal, your employer initiates the termination, and it could be either fair or unfair depending on the circumstances.
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Resignation: When you decide to leave your job voluntarily, it’s considered a resignation. Unlike dismissal, resignation is typically not grounds for an unfair dismissal claim because you are the one initiating the termination.
Understanding this difference is important because only dismissals can potentially lead to an unfair dismissal claim.
If you resign due to unfairness within the workplace, you could still claim for constructive unfair dismissal.
The Employment Rights Act 1996 and unfair dismissal
How the Employment Rights Act 1996 protects employees from unfair dismissal
The Employment Rights Act 1996 (ERA 1996) is the main piece of legislation governing employee rights in the UK, including the right not to be unfairly dismissed. Under this act, employees are entitled to fair treatment in the workplace and are protected from being dismissed without good reason or without a proper procedure.
Key provisions of the ERA 1996 for unfair dismissal
The ERA 1996 states that:
- Employers must have a fair reason for dismissing an employee.
- A fair procedure must be followed, giving the employee a chance to respond to any concerns.
- Certain types of dismissals are considered automatically unfair and are unlawful, regardless of the circumstances.
By law, employees who believe they’ve been unfairly dismissed can take their case to an Employment Tribunal, where the tribunal will review the case based on the ERA 1996.
Who can claim for unfair dismissal?
Eligibility requirements for making an unfair dismissal claim
Not everyone is eligible to make an unfair dismissal claim. To be able to bring a claim to an Employment Tribunal, you must meet certain criteria.
Eligibility requirements
To claim unfair dismissal in the UK, you generally need to:
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Be an employee: Only employees (those with a contract of employment) can claim for unfair dismissal. Workers, freelancers, and self-employed individuals are usually not eligible.
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Have two years of continuous service: Employees must have worked for the employer continuously for at least two years to qualify. There are exceptions to this rule, particularly for cases of automatic unfair dismissal and if the reason for your dismissal was discriminatory.
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Be within the time limit: You must file an unfair dismissal claim within three months less one day from the date of your dismissal. Missing this deadline can prevent you from bringing a claim, so it’s crucial to act promptly.
Exclusions from claiming unfair dismissal
Certain individuals and situations are excluded from claiming unfair dismissal. These include:
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Freelancers and self-employed individuals: Only employees can claim unfair dismissal. If you are a freelancer or contractor, you are generally not covered under unfair dismissal laws.
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Some agency workers: Agency workers may not be eligible unless they have a direct employment contract with the organisation.
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Employees on fixed-term contracts: If your contract has ended naturally (e.g., reaching the agreed end date), it may not be considered dismissal unless there was an unfair process involved in ending the contract early.
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Police officers, members of the armed forces, fishermen who are paid with a share of the profits, and people who work abroad.
By understanding these eligibility criteria, you’ll know whether you have a right to make an unfair dismissal claim.
What makes a dismissal fair?
Factors that determine whether a dismissal is fair or unfair
A dismissal is fair only if the employer has a valid reason and follows a fair procedure. The ERA 1996 outlines five potentially fair reasons for dismissal:
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Conduct: This covers dismissals for misconduct, whether minor or gross.
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Capability: Dismissals for capability issues require evidence that the employee cannot perform their duties effectively.
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Redundancy: If an employer needs to reduce the workforce due to financial difficulties or business changes, redundancy can be a fair reason.
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Statutory illegality: This reason applies if keeping the employee on would break the law, such as when a driver loses their license and can no longer perform their duties legally.
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Some other substantial reason (SOSR): This catch-all category applies to unique situations where dismissal is justifiable but doesn’t fit the other categories.
Even with a valid reason, employers must still follow a fair process, including warnings, a hearing, and a chance for the employee to respond.
Common reasons for unfair dismissal
Situations where dismissals can be considered unfair under UK law
Unfair dismissals can occur for various reasons, but three common grounds for dismissal are often subject to unfair dismissal claims. These are capability, misconduct, and some other substantial reason.
1. Dismissal due to capability
An employee may be dismissed due to capability if they cannot perform their duties adequately, either because of a lack of skills, experience, or persistent absence due to illness. However, for a dismissal to be fair, the employer must:
- Provide support and training: Employees should receive adequate training and support to help improve their performance.
- Follow a fair process: Employers should conduct performance reviews, give warnings, and allow time for improvement.
Read about correct capability procedure. If the employer skips these steps, the dismissal may be considered unfair.
2. Dismissal due to misconduct
Misconduct dismissals occur when an employee behaves inappropriately or violates company policies. Misconduct can include actions like theft, violence, or repeated lateness. For a dismissal to be fair in cases of misconduct, the employer should:
- Investigate thoroughly: The employer must conduct a fair investigation and gather evidence of the misconduct.
- Follow disciplinary procedures: This includes holding a disciplinary hearing, giving the employee a chance to defend themselves, and issuing warnings where appropriate.
Read about correct misconduct procedure. If these procedures are not followed, the dismissal could be challenged as unfair.
3. Dismissal due to Some Other Substantial Reason (SOSR)
SOSR is a category for situations that don’t fit into capability or misconduct but still provide a potentially fair reason for dismissal. Examples of SOSR include:
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Breakdown of trust and confidence: If a severe breakdown of trust occurs, the employer may argue that it’s no longer feasible to continue the employment relationship.
For an SOSR dismissal to be fair, the employer must show a legitimate reason and follow a reasonable procedure.
Automatic unfair dismissal
When a dismissal is automatically unfair and what it means
Some types of dismissals are considered “automatically unfair,” meaning they are unlawful regardless of the circumstances. In cases of automatic unfair dismissal, employees do not need two years of continuous service to bring a claim.
Types of automatic unfair dismissal
Some examples of automatic unfair dismissal include:
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Dismissal for pregnancy or maternity leave: Dismissing an employee because of pregnancy, maternity leave, or parental leave is automatically unfair.
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Dismissal for whistleblowing: Employees who report illegal activities or unsafe practices (also known as whistleblowing) are protected from dismissal.
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Dismissal for asserting a statutory right: If an employee is dismissed for asserting their legal rights, such as requesting holiday pay or refusing to work excessive hours, it’s automatically unfair.
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Dismissal related to trade union activities: Employees have the right to join trade unions and participate in union activities without fear of dismissal.
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Dismissal due to discrimination: If the reason for dismissal was due to one of the protected grounds in the Equality Act, this would be automatically unfair.
Automatic unfair dismissal cases are taken seriously by Employment Tribunals, as they represent breaches of fundamental rights.
How to handle an unfair dismissal claim
Steps for employees who believe they have been unfairly dismissed
If you believe you have been unfairly dismissed, you can take steps to challenge the decision. Here’s how to proceed:
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Seek advice: Contact ACAS for advice on your rights and options.
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File a claim with the Employment Tribunal: Ensure that you file your claim within the time limit (three months less one day from your dismissal date). Filing a strong, legally founded claim is important: read our ET1 guide for advice!
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Prepare your case: Gather evidence, such as employment contracts, emails, and any disciplinary records, to support your claim.
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Attend the tribunal hearing: If your case goes to a hearing, prepare to present your case clearly and provide any evidence that supports your claim.
Conclusion
Unfair dismissal laws in the UK protect employees from being dismissed without a fair reason or process. By understanding what constitutes fair and unfair dismissal, you can be better prepared to handle your situation if you feel your rights have.
