Unfair dismissal

Contributor -

Philip Landau, founder member, Landau Law Solicitors

A woman is unfairly dismissed

If you have been dismissed by your employer, you may be entitled to make a claim for unfair dismissal. This could be due to the reason you were dismissed or because the way you were dismissed was unfair.

What is unfair dismissal?

There are three main types of unfair dismissal situations:

  • if your employer does not have a fair reason for dismissing you;
  • if your employer did not follow the correct process for dismissing you (eg the company disciplinary procedure was not followed);
  • if your dismissal is considered to be 'automatically unfair' (eg as a result of discrimination).

In most cases, you need to have worked for your employer for at least two years to be able to make a claim at an employment tribunal. But this two year qualifying period does not apply for claims of automatic unfair dismissal (see below), or where you are making a claim for discrimination under the Equality Act.

What is an unfair reason for dismissal?

Any reason for dismissal is considered unfair unless it falls under one of the following categories:

  • lack of capability or qualification (ie you were unable to do your job properly);
  • misconduct (eg dishonesty, misbehaviour or failure to follow instructions);
  • a genuine redundancy situation;
  • legal restriction (eg lack of security clearance if the job involves government security work);
  • some other substantial reason.

'Some other substantial reason' needs to be something which justifies the dismissal. Examples might include a business reorganisation, a serious personality clash between you and your employer, or if a customer says that it will stop dealing with the business while you work there.

Even if your dismissal was based on a 'fair' reason, it is still up to the employment tribunal to decide whether your employer has acted reasonably when terminating your employment. It's always worth discussing your situation with an employment lawyer.

What is an unfair process?

If your employer has dismissed you for a valid reason but did not follow the correct procedure, this may also be considered as unfair dismissal. A few examples of unfair dismissal on procedural grounds are:

  • the formal company disciplinary procedure was not followed;
  • your employer did not follow the recommended Acas Code of Practice on disciplinary procedures (eg you were sacked 'on the spot' for gross misconduct without any investigation taking place or being allowed to explain your side of the story);
  • in the case of a redundancy situation, your employer did not follow the correct selection or consultation process.

What is automatic unfair dismissal?

In some circumstances, you will be deemed to have been automatically unfairly dismissed without having to prove that your employer did not have a good reason or follow the correct process. These include:

  • where the dismissal relates to pregnancy or maternity leave;
  • where the dismissal relates to a health and safety issue;
  • if you were dismissed as a result of whistleblowing;
  • if you were dismissed for asserting your statutory (legal) rights (eg demanding the national minimum wage);
  • if you were dismissed because you took part in trade union activity;
  • where the dismissal was related to a 'business transfer' (eg a sale of the business);

In some cases, eg where your dismissal related to a business transfer, you will still require two years' service even though your claim is for an automatic unfair dismissal.

What to do about unfair dismissal

If you think you have been unfairly dismissed, or are about to be unfairly dismissed, you may want to let your employer know. If you cannot resolve the problem informally, you should send a formal letter as part of following your employer's grievance procedure.

You may find it helpful to take advice from your union representative or an employment lawyer on how best to approach your employer and what you can expect.

In some cases, you may be able to agree a solution with your employer. For example, you might be able to reach a 'settlement agreement' (which used to be called a 'compromise agreement') where your employer agrees a payment and you agree not to claim unfair dismissal.

If you cannot agree, you may want to take your claim to an employment tribunal. Before you can do this, you must lodge your claim with Acas within 3 months less one day from the last day you were employed (this is usually the last day you were paid). They will offer you and your employer the chance to use their Early Conciliation Scheme to see if you can settle your dispute, although it may not be in your best interests to do this. The claim must be lodged with Acas whether or not you decide to use their services.

If Early Conciliation does not work, or if you and your employer do not agree to use Early Conciliation, you can then make a claim to the employment tribunal.

There are strict time limits for doing this, which depend on when your employment ended and when the claim was lodged with Acas. You should have as a minimum at least one month from the date of the Acas Early Conciliation Certificate in which to lodge a tribunal claim, but the rules are complex and it is best if you take legal advice.

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