Our Guide to Unfair Dismissal

Unfair dismissal can be distressing and upsetting. Our guide can help you navigate whether you have actually been unfairly dismissed, and how to proceed.

What is dismissal?

Dismissal is when your employer terminates your employment. This can often feel unjustified or unfair. Your employer does have the right to dismiss you, but it must be done under fair conditions. 

It is to be noted that only individuals that meet the statutory definition of an employee, under s. 230(1) Employment Rights Act 1996, can bring a claim for unfair dismissal. This is “an individual who has entered into or works under…a contract of employment.” An employment contract can be written or oral, and expressly stated or implied by the conduct of the parties. That stated, individuals who are working illegally will not be able to claim for unfair dismissal. 

If you are dismissed, your employer needs to show that they have a valid reason for doing so. It must also demonstrate that they have acted reasonably in the circumstances.

Your employer must be consistent. This means that they cannot dismiss you for doing something that other employers also do, such as turning up to work late. Your employer must also have investigated the situation before they can dismiss you, for example if there was a complaint made against you.

Note that you cannot be treated less favourably than a full time or permanent employee on the basis that you are a part-time or fixed-term worker.

Possible reasons for a fair dismissal

Remember that your employer can dismiss you for multiple fair reasons, including;

• Being unable to do your job

At law, inability to perform adequately to do your job is broken into two parts: (1) performance capability and (2) qualifications. 

A simple example of (1) is being unable to get on with your co-workers or customers. A leading case on this type of dismissal is AJ Dunning & Sons (Shopfitters) Ltd v Jacomb [1973] I.C.R 448, where the employee’s “uncooperative” attitude meant that certain key clients refused to work with that employee. As a result, he was dismissed. 

AJ Dunning also encompasses the important point that an employer should follow disciplinary procedures. For example, they must warn you that your work or attitude is not up to standard. The employer should give you a chance to improve, for example giving you extra training or time.

(2) is more straightforward: in Blackman v Post Office [1974] I.C.R 151 an employee was hired on the condition that they would obtain certain qualifications (a special ‘aptitude test’) and they could not do so. Dismissal in such circumstances was fair.

• Illness or health impairments

You might also be fairly dismissed if you have ongoing or a long-term illness or disability that makes it impossible for you to work.

In respect of the former, this is ultimately a question of absence. An employer is expected to bear a certain amount of legitimate absence, and the more severe the medical condition (which must be demonstrated by evidence – a ‘sick note’) the longer absence is justifiable before any dismissal could be seen as fair. 

Again, before taking action, your employer should try to help and support you. This might include assessing the actual job, and helping you work out what is making you ill, such as excessive stress and pressure at work which may be causing you mental health problems. Significantly, however, the Court of Appeal held in Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust [2019] EWCA Civ 498 that an employer could fairly dismiss an employee even if the illness was primarily caused by the employer itself. 

If you are disabled, your employer has a legal duty to support disability in the workplace. Dismissal because of a disability is discrimination, and is not a fair reason for dismissal.

• Redundancy

Companies often struggle, and one way to help the situation may be increased redundancies. This is legal. However, you cannot be made redundant for an unfair reason. The closing of the business, or a legitimately reduced requirement for employees must be the whole or main reason for redundancy. That an employee is superfluous because, for example, she is unliked by her line manager, is not a basis for dismissal on redundancy grounds.

• Gross misconduct

A further fair reason for dismissal is gross misconduct.

Examples of gross misconduct include theft, physical violence and gross negligence. However, this list is not definitive and further behaviours may be qualify for gross misconduct.

Your employer does not need to go through the usual disciplinary procedures, such as giving you time to improve, if you are guilty of gross misconduct. However your employer should investigate the circumstances and offer you a chance to respond before dismissing you.

• Statutory restrictions

An employer can dismiss you if continuing to employ you would break the law. For example, if you are a taxi driver and you lose your licence for various reasons, it is fair and justified that your company cannot continue to employ you. 

That stated, the employer must satisfactorily demonstrate that your continued employment would in fact be illegal. It cannot simply just hold a reasonable belief that it would. Employers can often fall foul of this nuance, as an ‘overprotective’ dismissal would likely be unfair.

What is unfair dismissal?

In certain situations, you may be able to take legal action if you are dismissed.

Unfair dismissal is when your employer does not have a good reason for dismissing you, or if they do not follow the company’s usual formal disciplinary or dismissal processes.

Our checklist for unfair dismissal

• Check if you have genuinely been dismissed

It is only possible to challenge a dismissal if you can show that it has actually happened. This means that evidence will be needed to prove such, for example official termination letters, emails or text messages from your employer.

Resigning by choice or being suspended will not count as being unfairly dismissed.

• Check your employment status

Your employment status means whether you qualify as an employee, a worker or as self-employed.

As stated, you will only have the right to claim unfair dismissal if you’re an employee, which includes part-time and fixed-term employees.

Unfortunately, if your employment status is either self-employed or an agency worker, you cannot claim for unfair dismissal.

• Check that you have been dismissed for an unfair reason

Legally, you cannot be dismissed because of an ‘automatically unfair reason’ or as a result of discrimination.

There are many situations and circumstances which would constitute an automatically unfair reason for dismissal, and examples are listed below:

• Asking for flexible working. This could include asking to work from home or asking for flexible hours, such as condensing your hours into fewer days;
• Refusing to work through your breaks;
• Working your scheduled hours;
• Resigning and giving the correct notice period;
• Joining a trade union;
• Taking time off for jury service;
• Applying for maternity or paternity leave;
• Taking maternity leave or paternity leave that you are entitled to; and/or
• Constructive dismissal.

What is constructive dismissal?

Constructive dismissal is where you’re forced to leave your job against your will due to your employer’s conduct, which might include:

• Not being paid;
• Suddenly being demoted for no reason; or
• Being forced to accept unreasonable changes to your usual work, such as working night shifts when you are solely contracted for day shifts.

Before quitting however, you should attempt to communicate your concerns with your employer. They may be unaware of how you feel, or believe their actions to be appropriate.

What is discrimination?

A further unfair reason for dismissal is that of discrimination. If you believe you were dismissed due to discrimination (e.g because of your ethnicity or sexuality), you may have a claim for unfair dismissal. This is distinct from any claim under the Equality Act 2010.

What can I do if I am dismissed?

Your employer may not always be completely honest with the reason you are being dismissed, and if you believe you have been dismissed for any of the reasons listed above under unfair conditions or discrimination, you may have a claim.

The first thing you should do is contact the Advisory, Conciliation and Arbitration Service (ACAS) and seek early conciliation. We can help you with this process which is voluntary but is a usual requirement before you can make a claim at the Employment Tribunal. 

You normally have three months from the date of dismissal to make a claim, although if ACAS has been involved this time limit can be extended. 

At the Tribunal, the employee need only demonstrate that they were dismissed. Once that is satisfied, the employer must demonstrate that the dismissal was fair. 

If the Tribunal determines that the dismissal was unfair, an employee has a right to reinstatement at their previous position (including any lost salary), or compensation. In practice your employer will probably want to pay you compensation which we can help negotiate for you.

The amount of time you have worked at a company does not affect your right to challenge an unfair dismissal. However, if you have worked for less than two years and you were dismissed for a fair reason, you may not have the right to challenge it.

There are many steps you can take if you think you have been unfairly dismissed. Our expert employment lawyers can help. We are available for a confidential discussion, please get in touch here.