Unfair Dismissal – everything you need to know

Unfair dismissal is where your employment has been unfairly terminated by your employer. The reason for your dismissal must be sufficient to justify termination. If you have been wrongly dismissed, our legal experts are here to help. This article addresses some of the most frequently asked questions we have received from clients regarding unfair dismissal.

The Employment Rights Act 1996 protects the employee’s right not to be unfairly dismissed. Your rights will depend on your particular circumstances. There are two types of unfair dismissal claims, ordinary and automatic.

To make a claim for unfair dismissal, you will first need to be able to establish that you are an employee who has been dismissed or given notice of dismissal.

To be entitled to ordinary unfair dismissal protections, you will need to have a minimum of two years’ continuous service. Your dismissal may be considered unfair if you have the required length of service and any of the following are applicable:

• There was not a fair reason for the dismissal
• The reason for the dismissal was not substantial enough to justify the dismissal
• Your employer did not follow a fair process
• Any reason which is considered automatically unfair.

If your employer is able to establish a potentially fair reason for your dismissal, the dismissal may be found to have been unfair where the employer has failed to follow a fair procedure. Employers are required to follow the ACAS Code of Practice, which sets out the minimum standards of reasonable behaviour required by the employer when dealing with disciplinary and grievance situations at work. An employer’s failure to follow the ACAS Code can be taken into account when determining liability and can impact any potential compensatory award for the Employment Tribunal claim.

There are exceptions where automatic unfair dismissal may apply if the employee has less than two years’ service. If the primary reason for your dismissal is considered to be automatically unfair, you may be able to bring a claim in the Employment Tribunal.

The below list provides examples of automatically unfair reasons (this is not exhaustive):

• Asserting a statutory right
• Whistleblowing
• Raising or taking action in regard to a health and safety issue
• Making a flexible working request
• Wrongful dismissal

An employee may be able to separately bring a claim under two years’ service for discrimination if their employment was terminated due to a protected characteristic.

If you are considering your options and commencing Tribunal proceedings, you must ensure you do not exceed your limitation period.

For unfair dismissal claims, you have three months from your effective date of termination to notify ACAS of your dispute. This is the first step of the legal process.

The general rule is that following a period of ACAS Early Conciliation, you will have one calendar month from the date of the ACAS certificate to issue your claim at the Tribunal. There are some limited exceptions where this time frame may be extended but as it is difficult for the Tribunal to accept a claim made out of time, we would always suggest seeking advice on your specific limitation dates.

Wrongful dismissal often occurs where an employee is dismissed without being paid their correct notice entitlement, which is either the statutory notice or whatever is in their contract if it is greater.

Unfair dismissal is where the employee is unfairly dismissed or automatically unfairly dismissed by the employer, as set out above in this article.

Constructive unfair dismissal is where an employer behaves in a way which allows an employee to resign as a result of the employer’s conduct. This is usually where the employee has no other option but to resign in response to a fundamental or repudiatory breach of contract. Constructive dismissal claims are notoriously difficult to bring, and we would suggest seeking specialist advice from our employment team if this is an option you feel you wish to pursue.

If you are successful in your unfair dismissal claim, the Employment Tribunal may award any of the following:

• Compensation
• An order for reinstatement
• An order for re-engagement

The most common remedy is compensation. An award of compensation is usually broken down to a basic award (this sum is calculated based on your weekly pay, length of service and their age) and a discretionary compensatory award (this is to compensate you for financial losses suffered as a result of the unfair dismissal). This is capped at one year’s salary up to a maximum of £118,223. If you are bringing another claim alongside your unfair dismissal claim, there may be other types of awards you could receive. This is not applicable for a standalone unfair dismissal claim.

If you believe your dismissal was potentially unfair, get in touch with our team of experts who can help. Seeking advice as early as possible is crucial to ensure you do not exceed your 3-month limitation period.

Book a free initial 30-minute consultation with a member of our employment team to discuss your case and next steps.

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