employment law

What you need to know about Unfair Dismissal

What should you do if you think you’ve been unfairly dismissed?

Thankfully real life is not like The Apprentice.

While Lord Sugar’s famous catchphrase “you’re fired!” might be acceptable in The Apprentice boardroom, in the real world it’s not so easy to get rid of employees.

If your employer wants to dismiss (fire) you, there are certain rules and procedures they must follow – and the law protects you from being unfairly dismissed.

Can your employer dismiss you?

Your employer can only dismiss you if they can prove they have a valid, justifiable reason and they have acted reasonably in the circumstances.

They need to be consistent. They can’t dismiss you for doing something they let other members of the team do. They must also investigate the situation fully before a dismissal.

If you are a part-time or fixed-term worker, you have the right not to be treated less favourably than a full-time or permanent employee.

In the majority of dismissal instances, you must be given at least the notice stated in your contract or the statutory minimum notice period, whichever is longer.

However, in some situations – for example, if you are being dismissed for acting violently – you can be dismissed immediately.

Get it in writing

Have you completed at least one year’s service as an employee (if you were employed before 6 April 2012), or two years (if employed after 6 April 2012)? Or, are you employed under a fixed-term contract that hasn’t been renewed after it ended?

If so, it’s good news. You then have the right to ask your employer for a written statement outlining the reasons for your dismissal. And this must be given to you within 14 days of your request.

If you are on statutory maternity leave when dismissed, your employer has to give you a written statement – even if you’ve not asked for one and regardless of how long you have worked for the company.

Is your dismissal fair?

In order for your dismissal to be classified as ‘fair’, your employer has to be able to show that it is because of a particular reason:

Capability and Qualifications: If you are unable to do your job properly, either through incapability, lack of qualification or by reason of illness, then your employer may be able to dismiss you fairly. Before dismissing you, though, your employer has to go through the company’s standard disciplinary procedures to give you the opportunity to improve (e.g. by providing additional training). If you have a long-term or persistent illness that makes it impossible for you to carry out your role, then you could be dismissed fairly. Before this step is reached, your employer should look at ways to support you and consider if anything in your current role needs changing. Being dismissed because of a disability (which could include a long-term illness) however, may be unlawful discrimination.

Conduct: If you display signs of misconduct at work, such as disobedience of orders, dishonesty, fighting, lateness or breach of work rules, then your employer may be able to dismiss you fairly. Before dismissing you, though, your employer has to go through the company’s standard disciplinary procedures to give you the opportunity to improve. If you are dismissed for ‘gross misconduct’, while your employer doesn’t have to go through the normal disciplinary procedures, they do have to investigate the circumstances before dismissing you

Redundancy: In most cases, redundancy is an acceptable reason for dismissal – as long as the reason you have been selected is fair.

A ‘statutory restriction’: If it would break the law to continue your employment (e.g. if you are a taxi driver and you lose your driving licence), or it’s impossible to carry on employing you (e.g. if the business shuts down) then you can be dismissed fairly.

A ‘substantial reason’: This could include if you unreasonably refuse to accept a change to your role due to a company reorganisation, or if you are sent to prison.

Not playing fair

You have a statutory right not to be unfairly dismissed, as outlined in the Employment Rights Act 1996 (ERA 1996).

If your employer fails to give a good reason for dismissing you, have failed to act reasonably, or they don’t follow the company’s disciplinary or dismissal procedures, then your dismissal could be deemed unfair.

Some instances where a dismissal is likely to be unfair include if you have:

• requested flexible working
• resigned with the right notice period
• joined a trade union
• needed time off for jury service
• applied for maternity, paternity or adoption leave, or were on any maternity, paternity and adoption leave you are entitled to
• tried to enforce your right to receive Working Tax Credits
• exposed wrongdoing in the workplace (whistle-blowing)

In the past, you were not able to claim unfair dismissal for age discrimination if you were forced to retire because you reached the age of 65. This has changed. It is now illegal for your employer to force you to retire because of your age – unless they can prove that you need to be a certain age to carry out your role.

As well as age, being dismissed because of disability, race, religion, gender, gender reassignment, sexual orientation, marriage or civil partnership could be grounds for making a claim for discrimination to an employment tribunal instead of, or in addition to, a claim for unfair dismissal.

If you want to make a claim for discrimination, it doesn’t matter how long you have worked with the company.

Can I claim unfair dismissal?

Generally, to claim unfair dismissal you need to have worked for your employer for at least one year if you started working for your employer before 6 April 2012 or two years if you started on or after 6 April 2012.

If you have worked for less than these required durations, an employment law professional will be able to advise you on the rules.

Some employers claim that people who are actually employees are self-employed. If you are not sure of your employment status, speak to your employer or see our article about employment status.

If you are not an employee (e.g. an independent contractor or a freelancer), a police officer, member of the armed forces, share fisherman, registered dock worker or you work outside the UK then you can’t claim unfair dismissal.

See you in court

You should always try to resolve any workplace disputes informally with your employer to start with.

However, if you are unable to resolve the issue you might be able to take a claim up with the employment tribunal. If you want to make a claim, you should consult a solicitor who will guide you through the process.

You must make the claim to a tribunal within three months of being dismissed, so you should consider this if you are thinking of taking legal action.

If you win your claim, you could be awarded unfair dismissal compensation, or your employer could be ordered to give you your job back (although this outcome is quite rare).

Compensation for an unfair dismissal can be made up of:

A basic award: Your gross weekly pay, length of service and age will be taken into consideration to calculate this

A compensatory award: This makes up any financial losses you may have suffered as a result of the unfair dismissal

An additional award: If your employer doesn’t comply with an order to give you your job – or a similar job – back, then they you might be entitled to this. It’s usually between 26 and 52 weeks of pay.

Occasionally, an employee claiming unfair dismissal may be able to seek an interim remedy before a decision about the case has been made.

Interim relief is only available if an employee alleges that his dismissal was for a number of different, automatically unfair reasons.

Not only are there strict time limits for applications for interim relief, but it will only be granted if the tribunal believes the case will result in finding the dismissal unfair.

How we can help

If you think you are being threatened with dismissal or have been dismissed, we can give you practical help and advice.

Depending on your circumstances, we may be able to help you resolve the issue by mediation, conciliation and arbitration. If you are a member of a trade union, you can also speak to your union representative.

Please contact our employment lawyers via Daniel Zakis on 0121 705 7571 or email danielzakis@wallacerobinson.co.uk.

Further reading:

What is a Compromise or Settlement Agreement? (Employment Law)

Age Discrimination - an age old problem? (Employment Law)

This article is for general information purposes only. It does not constitute technical, financial, legal advice or any other type of professional advice and is no substitute for specific advice based on your individual circumstances. We do not accept responsibility or liability for any actions taken based on the information in this article. For more information, please click here.