What is considered unfair dismissal in the UK?
Unfair dismissal happens when your employer fires you without a good reason, or fails to follow the proper dismissal or disciplinary process.
If the company you work for fails in either of these areas, you could be able to make an unfair dismissal claim. As with any legal process, it is often a bit more complex than that, so make sure you have a good understanding of the topic before taking the matter further.
What counts as unfair dismissal?
You are likely the victim of unfair dismissal if you have been fired because:
- You are pregnant
- You are on jury service
- You have engaged in whistleblowing, which means reporting wrongdoing, illegal activity, or unsafe practices in the workplace
- You have raised or intend to take action over health and safety issues
- You have requested a legal employment right, such as receiving minimum wage
- You have joined, represented, or taken industrial action as part of a trade union
- You have been asked to take compulsory retirement
These are considered cases of automatic unfair dismissal. In other words, firing you strictly because of any of these reasons would usually lead an employment tribunal to decide in your favour.
Unfair dismissal is different from constructive dismissal and wrongful dismissal.
Constructive dismissal occurs where you feel you have been forced to quit your job due to your employer’s actions, or inaction. For example, this could happen because they refuse to pay you, demote you for no reason, or allow colleagues to bully you in the workplace.
Wrongful dismissal generally happens when your employer fails to give you an adequate notice period or will not give you your notice pay.
Whatever your situation, employment solicitors may be able to explore your specific circumstances and advise on other reasons why you may have an unfair dismissal case.
What doesn’t count as unfair dismissal?
Your employer can fairly dismiss you if:
- You cannot do your job because of poor performance or ongoing interpersonal problems with colleagues
- A persistent and long-term illness prevents you from doing your job, although your employer should first try to support your return and allow a reasonable recovery time
- Your job no longer exists. Redundancy is considered fair, although you may still be able to make a redundancy claim
- Your workplace conduct is poor, although your employer must investigate any accusation of gross misconduct
- You face statutory restrictions, for example if you are a driver who has lost their licence or a teacher who is no longer permitted to work with children
- You refuse reasonable job alternatives during reorganisation, such as when a company undergoes restructuring and you do not accept changes to your contract
Who can make an unfair dismissal claim?
Not every employee can make a claim for unfair dismissal. There are two criteria that you will need to meet:
- You must be a fully contracted employee
- You must have worked for the company for at least two years
So, for instance, if you are self-employed, an independent contractor, or still on probation, you will not be eligible to make a claim. And that is just the start.
Check the government’s eligibility guidelines to see if you qualify.
If you fit the criteria, it is time to consider how best to react to your dismissal.
How do you claim unfair dismissal?
Almost all workplace disputes, from disciplinaries to redundancies, follow the same basic process. Long before you lodge a claim with an employment tribunal, you should complete these steps.
- Step one: Talk to your employer. See if you can resolve the matter between you before your notice period is up. You may be able to get your job back, or leave on amicable terms with a good reference.
- Step two: Formally complain to HR. In most cases, your employer must legally investigate your complaint to see if you have been unfairly dismissed.
- Step three: Appeal the dismissal decision. After your dismissal has been conveyed, you should have the right to appeal, and your employer should explain how to do this.
- Step four: Speak to a legal representative. If your appeal fails, it is usually best to talk to an employment solicitor as you may need to consider legal action.
- Step five: Inform ACAS. Before you can take your claim to an employment tribunal, you need to let ACAS know your intentions.
- Step six: Attend early conciliation. After informing ACAS, the service will offer early conciliation, which is a form of mediation with an independent third party. If you both resolve the matter, you and your employer will receive a legally binding agreement. If not, you will get the go-ahead to take legal action.
- Step seven: Lodge a claim with an employment tribunal. Your solicitor will guide you through what can often be a stressful and time-consuming process.
You only have three months minus one day from the date of your dismissal to lodge a claim.
During the tribunal, your employer must be able to prove that:
- They had a good or fair reason to dismiss you
- You have not been discriminated against
- The dismissal procedure was properly followed
- You were already aware of the process and company guidelines
What is the pay-out for unfair dismissal?
If a tribunal concludes that you have been unfairly dismissed, you will receive a basic award plus a compensation award, which accounts for loss of statutory rights, earnings, and pension.
Any basic award pay-out will be a fixed amount and depends on your age, length of service, and gross weekly pay. Length of service is capped at 20 years, while weekly pay is capped at £525. Your basic award can also be reduced if the tribunal finds your conduct is at fault, you have turned down an offer of re-employment, or you have received redundancy pay.
To work out your basic award, use the government’s statutory redundancy pay calculator, as it is calculated in the same way.
How do you find an employment solicitor?
When facing unfair dismissal, an employment solicitor is well placed to advise on how to make and win a claim with a tribunal.
The Law Superstore helps you compare and connect with solicitors locally and across England and Wales. Fill in a few details using our quick quote form to find employment solicitors who understand what you are going through.