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A simple guide to when unfair dismissal applies

What is dismissal?

Dismissal is when your employer chooses to end your employment, with or without notice given to you.  For dismissal to be fair, there are a range of legalities that need to be taken into account, which we will go into more detail about below.

What must an employer do to make a dismissal fair?

First of all, there are set procedures and reasons that an employer must follow if they are to dismiss you fairly.  These include:

  • Making a proper investigation of the issues
  • Providing you with a valid, reasonable and justifiable reason for dismissing you
  • Following a set company disciplinary or dismissal procedure, so that there is no disparity between your circumstances and what other employees have been able to do without being dismissed

When you are dismissed, you have the right to ask for a statement detailing specific reasons for your dismissal, if you have worked for the company for at least 2 consecutive years or without any time limitations if you are dismissed whilst on Statutory Maternity Leave.  Your employer must provide you with your statement within two weeks from the date you requested it.

When dismissal can be challenged or classed as unfair dismissal

Dismissal requirements

If your employer either does not have a fair and valid reason for dismissing you, or they haven’t followed the company’s specific disciplinary or dismissal procedures, your dismissal could be classed as unfair.

Automatic unfair dismissal

Dismissal that is in any way linked to a protected characteristic may automatically be unfair dismissal.  Protected characteristics under the Equality Act include:

  • Age
  • Disability
  • Gender reassignment
  • Race
  • Religion or beliefs
  • Sex or sexual orientation

Other reasons for automatic unfair dismissal include:

  • Pregnancy or maternity leave
  • Refusing to work on a Sunday (if you work in a shop)
  • Taking part in trade union activities
  • Whistleblowing against an employer
  • Request, your legal rights such as holiday, pay or breaks

Possible unfair dismissal

Circumstances where there is a strong likelihood that your dismissal was unfair and where you can challenge your dismissal at an employment tribunal include:

  • Unjustified compulsory retirement
  • Unjustified disciplinary warnings leading to dismissal.

This is not an exhaustive list – there are other situations where your individual dismissal can be classed as unfair, so if it feels like it wasn’t entirely fair or justified, always check with an employment law solicitor who can give you advice about whether your dismissal was fair or not.

What to do if you’re threatened with dismissal

If you have received a final written warning or your employer has given you notice that they wish to dismiss you, it is worth contacting a legal specialist straight away.  At this stage, mediation can often help to resolve issues before you are dismissed, without the need for any further action from either side.  Similarly, a settlement agreement could be the answer to leaving on terms that both you and your employer are happy with.  If you find yourself in this situation, you can find more information about settlement agreements in our article about ‘How to ask for a settlement agreement.’

If you are unable to resolve your issues with your employer and your dismissal ensues, if you have reason to believe that your dismissal was unjustified, you may be able to bring a claim at an employment tribunal.  Again, ask a specialist employment law solicitor about this, as they will help to guide you on how to use the best option for your individual case.

How long do I have to claim for unfair dismissal?

You have three months from the date you were dismissed to bring a claim of unfair dismissal to an employment tribunal.

When your dismissal cannot be challenged

First of all, you can only claim that your dismissal was unfair if you were definitely dismissed.

If your employer has not ended your contract of employment, made you redundant or prevented you from returning to work after maternity, paternity or adoption leave, you may not have technically been dismissed.

In all instances, you will need to prove that you have been dismissed, ideally with an official statement confirming that you have been dismissed in writing.  This can take the form of a letter, email or even a text message from your employer, telling you that you have been dismissed or not to come back to work.

If you have resigned you will not be able to claim for unfair dismissal, but it may be possible to claim for constructive dismissal if you feel you were forced out of your job.

Some workers are also not able to challenge their dismissal, if they are not officially employed as an employee.  This includes self-employed contractors and some agency workers.

Valid reasons for dismissal

Reasons that your employer can use to dismiss you, which are likely to be found to be fair and valid at an employment tribunal, include:

  • Proving that you have an inability to do your job (this includes due to illness or being able to use new and essential technologies)
  • Proving that you have an inability to work well with others
  • Making you redundant (in most cases)
  • Proving that you have committed gross misconduct
  • Proving that you are no longer legally able to work for the company e.g. if you are a courier and have lost your driving license due to speeding offences or if you have been sent to prison
  • Proving that you have been unreasonable in accepting changes to your job role or terms of employment

Advice about unfair dismissal claims

To speak to a solicitor who specialises in helping employees with unfair dismissal claims, you can contact us using the telephone numbers below, or alternatively you can email me directly at idlewis@braybray.co.uk