What is unfair dismissal?
Dismissal can be unfair for a variety of reasons. For example, your employer may lack a fair reason for dismissing you; your employer may fail to follow the correct dismissal process; or your employer may dismiss you for an automatically unfair reason.
What are fair grounds for dismissal?
If you pursue a claim for unfair dismissal, your employer has the burden of showing your dismissal was based on one of six potentially fair reasons:
- your conduct (e.g., dishonesty, fighting, sexual harassment, intoxication, etc);
- your capability or lack of qualifications (i.e., in relation to the work you were employed to do);
- retirement (i.e., at age 65 or the organisation’s normal retirement age);
- some legal bar means your employment cannot continue (e.g., you’re employed as a driver but no longer hold a valid driving license); or
- there was “some other substantial reason” to justify your dismissal (e.g., you dressed or acted inappropriately at work, or acted in a manner outside work that affected your performance at work).
In all circumstances, your employer must act reasonably in treating the reason as a sufficient ground for dismissing you. An employment tribunal judges each case on its merits.
What is ‘procedural unfairness’?
While an employer may have a justifiable reason to dismiss you, the dismissal may still be unfair if there are procedural defects. Examples of procedural unfairness include unfair selection for redundancy, failing to carry out a proper investigation before dismissing you for gross misconduct; or failing to notify you before the default retirement age of your right to request to carry on working.
What is ‘automatic unfair dismissal’?
The importance of the distinction between regular unfair dismissal and automatic unfair dismissal is simple: when an employee is dismissed for an automatically unfair reason, the employer has no defence to a claim for unfair dismissal and the employment tribunal has no obligation to consider the reasonableness of the employer’s actions.
Here are a few examples of automatic unfair dismissal:
- dismissal for asserting a statutory right;
- unfair dismissal before, during or after the transfer of a business;
- unfair selection for redundancy;
- unfair retirement;
- pregnancy or maternity-related dismissal;
- unfair dismissal for an issue related to trade unions;
- dismissal during or following an industrial dispute;
- dismissal related to activities as an occupational pension scheme trustee;
- health and safety dismissals.
Is my employer obliged to disclose the reason for dismissal?
Yes. If you’ve been continuously employed for at least one year with the same employer, you may request a written statement of the reason for dismissal. And if you’re pregnant or on maternity leave you’re entitled to a written statement without even having to ask. If your employer unreasonably fails to comply or the reason given is inadequate or false, you can pursue the matter before an employment tribunal (provided you comply with the relevant time limits discussed below).
Who can claim unfair dismissal?
Only employees who have two years’ continuity of service at the date of dismissal, or have been dismissed without notice and are within two weeks of gaining two years’ continuity of service, can claim unfair dismissal. But this rule does not apply if you are claiming automatic unfair dismissal.
Length of service is calculated in months and years starting from the first day you began working for your employer, and it ends on the date your employment comes to an end. Your first day of employment starts after your sixteen birthday, and your end date is the last date you worked if you were given correct notice, or the last day you worked if your employer gave you payment in lieu of notice, or where a fixed-term contract ends and it is not renewed.
Certain categories of employees are barred from claiming unfair dismissal. These include members of the armed forces, police service and mariners.
How do you claim unfair dismissal?
Claims for unfair dismissal can only be brought before an employment tribunal. To file a claim, you must use form ET1, which is available from the GOV.uk website.
What does the employment tribunal do?
The employment tribunal will consider your claim and determine whether the decision to dismiss you was fair and reasonable. It is important to note that the tribunal is not allowed to impose its view of what is reasonable on your employer. Instead, it must judge the reasonableness of your employer’s decision to dismiss by the standard of a “band of reasonable responses” of reasonable employers.
Are there any time limits?
Yes! You must comply with strict and very short time limits to claim unfair dismissal. Normally a claim must be brought within three months of the last day of employment, counting the last day of employment as the first day of the three month period.
If the tribunal rules in my favour, can I get my old job back?
There are two remedies available for unfair dismissal:
- re-instatement or re-engagement; and/or
If you want your old job back, you can ask for re-instatement. Or you can ask for re-engagement, which means a different job with the same or an associated employer. Few employees ask for re-instatement or re-engagement – and a tribunal will not order either remedy unless you request it.
What about compensation for unfair dismissal?
For the purposes of unfair dismissal, compensation consists of two elements:
- the basic award; and
- the compensatory award.
The basic award is calculated in the same way as redundancy pay. How much you receive depends on how long you have been employed, your age, and your weekly pay before tax:
- for each year of continuous employment between the ages of 16 and 21 you will get half a week’s pay;
- for each year of continuous employment between the ages of 22 and 40 you will get one week’s pay;
- for each year of continuous employment between the ages of 41 and 65 you will receive one and a half weeks’ pay.
However, as with redundancy pay, there is an upper limit of 464 (gross) on the amount of weekly pay you can claim and a maximum overall payment of 13,920.
In addition, any period of continuous employment over 20 years is disregarded and for every month you are over the age of 64 you lose 1/12 of your pay.
There are two main differences between the basic award and redundancy pay:
- in some circumstances, the basic award is subject to a minimum payment of 5.676 (e.g., if you are dismissed for a reason connected to carrying out your duties as a safety representative, employee representative, trustee of an occupational pension scheme, or trade union activities);
- the tribunal can also reduce the basic award to take account of your conduct and receipt of redundancy pay.
Turning to the compensatory award, this allows compensation for past, present, and future loss of net earnings, fringe benefits, overtime and bonuses. It may also include loss of pension rights and other statutory rights, and expenses in looking or relocating for a new job. A premium for delayed payment or other reasons may also be payable. The maximum compensatory award a tribunal can make, however, is limited by statute (as of 6 April 2014, 76,574).
Note also that compensation is subject to deductions such as income tax, National Insurance , and social security benefits received, and may also be reduced because of other factors (e.g., if you fail to look for alternative employment and mitigate your loss or the tribunal finds you contributed towards your own dismissal).
Do I need a solicitor?
Employees may represent themselves before an employment tribunal, but seeking the counsel and representation of a qualified employment law practitioner is highly recommended.
You can search for an employment solicitor near you in our Solicitor Directory.
- Unfair dismissal law (Findlaw.co.uk)
- Unfair dismissal Q&A (Community)
- Unfair dismissal news (The Solicitor)