Unfair dismissal FAQ
Unfair dismissal
Losing a job can be a time when emotions run high and judgment is clouded. Our guide to unfair dismissal should help you decide whether your employer’s reasons for letting you go were legally sound.
What constitutes a dismissal?
An employee is dismissed when the employer terminates his or her contract of employment, unlike a resignation where the employee terminates the contract. Confusingly, the expiry of a fixed-term contract is also often referred to as a dismissal.
What constitutes an unfair dismissal?
The dismissal is unfair if you weren’t fired for a fair reason and/or you weren’t fired using the correct procedures. If you are dismissed for exercising your legal rights, it will automatically be classed as unfair dismissal.
It’s helpful to know that a tribunal is likely to find the following reasons justifiable:
- Incapability – in terms of qualifications, competence or health (excluding disability)
- Serious or repeated misconduct – theft, intoxication, leaking confidential information, regular absence, etc.
- Redundancy – provided the method for selection was fair.
Can an employee ask for the reasons for dismissal?
Yes, after one years’ continuous service, the Employment Rights Act 1996 gives you the right to ask your employer to provide a written statement of the reasons for dismissal within 14 days. If you don’t get a statement, or you believe the statement to be inaccurate, seek legal advice.
Is retirement a valid reason for dismissal?
The Employment Equality (Age) Regulations 2006 state that forcing someone to retire below the age of 65 is unfair. But retirement at 65 and older may be fair, provided the right procedures are followed. See the Department for Business Skill & Innovation website for details.
What is constructive dismissal?
A constructive dismissal is where an employee resigns because their employer has acted so as to make continued employment impossible. For example, a detrimental change in the contract of employment or a refusal to improve intolerable working conditions.
When can a disciplinary procedure be incorrect?
A tribunal will look at whether the employer had a proper disciplinary procedure, and whether it was followed. Written warnings aren’t obligatory in every situation; in cases of serious misconduct, immediate dismissal can be perfectly fair, for example. If the allegations are not investigated thoroughly, or if you’re not given the chance to tell your side of the story, your claim is more likely to be successful.
Can anyone bring a claim of unfair dismissal?
No. To begin legal proceedings, you must:
- have a proper contract of employment. If you are a casual or temporary worker, you may not have any protection;
- have been employed by your organisation for one year without any breaks;
be under 65; and - work in the UK.
Can I claim at any time?
No, you have three months from the date on which you were notified of the dismissal.
Can my union help if I am unfairly dismissed?
Your union representative is there to provide help and support. It may bring in an officer at national level to help you in a case of unfair dismissal. Trade unions can provide expert information, advising you, for example, on the likelihood of success should you wish to take your case to an employment tribunal.