AA Legal Documents
Law guide

Fair dismissal

Contents

Reasons why you can be dismissed

There are various reasons why your employer might dismiss you. The law distinguishes between them depending on whether they are considered fair or unfair reasons for dismissal. You have a right to have a written statement explaining why you have been dismissed.

Regardless of the reason for your dismissal, your employer should act fairly in the procedure they follow. Your employer must show they have followed the minimum procedural steps set out in the Acas code of practice on disciplinary and grievance procedures. The Acas code is not binding on an employer. However, if they do not follow the procedures set out in the code without a reasonable excuse, then your dismissal may be unfair and in some cases, an Employment Tribunal will increase any award made by up to 25% for failing to follow the Acas code. .

You normally need at least two years' continuous service (or one year's if your employment began before 6 April 2012), before you can claim unfair dismissal.

Fair reasons for dismissal

Your employer must have a good reason for dismissing you, and has to show that the reason is genuine and justifies your dismissal. The five potentially fair reasons for dismissing an employee are:

Your conduct

This usually means you've broken one or more of the terms of your employment, e.g.:

  • Continually missing work
  • Poor discipline
  • Drug or alcohol abuse
  • Theft or dishonesty
Your employer should follow a fair disciplinary procedure before dismissing you for misconduct.

For more information, see our 'Disciplinary procedures' section.

Your capability

This means that you can't do your job properly (including because you don't have the right qualifications) or aren't performing to the required standard, e.g. because:

  • You haven't been able to keep up with technological changes to your job e.g. introduction of computerised systems
  • You can't get along with your colleagues
  • Long-term or persistent illness makes it impossible for you to do your job
Your employer should make sure you're given adequate training to do your job. If you're performing poorly, you should usually be warned that your work isn't satisfactory and given a chance to improve before any action is taken.

If you are persistently off sick (or long-term sick), your employer should normally look at any alternatives before deciding to dismiss you. For example, they might have to consider whether the job itself is making you sick and needs to be changed.

You should be aware that you can still be dismissed if you are off sick.

Your employer would normally be expected to allow a reasonable amount of time for you to recover from your illness. The actual amount will depend on things like:

  • How long it will take to recover
  • How certain it is that you will recover (with some illnesses, like broken bones, it is clear how long it will take but with something like stress it can be uncertain)
  • How easy it is to get cover
  • Whether your job can be kept open
If you have a disability (which may include long-term illness) your employer has a legal duty to try to find a way round the problem by making 'reasonable adjustments' to how and/or where you work. Dismissal because of a disability may be unlawful discrimination.

For more information, see our 'Disability Discrimination Act' section.

Redundancy

This means there's no more, or not enough work for you. It might occur if:

  • Your employer closes or restructures
  • Your employer relocates
  • Your employer needs fewer workers
Your employer would be expected to select you fairly, consider offering you alternative work, and to consult you properly before making you redundant.

For more information, see our 'Redundancy' section.

A statutory restriction

Your employer can dismiss you if continuing to employ you would break the law – for example, if you're a driver and you lose your driving licence. They would be expected to try and find other suitable work for you before choosing to dismiss you.

Another substantial reason

The emphasis here is on 'substantial'- it applies to a situation where your employer has an overwhelming reason why you must be dismissed. They would be expected to look at any alternatives before choosing to dismiss. Reasons that have previously fallen into this category include:

  • Imprisonment
  • An irresolvable personality clash between you and a co-worker
  • If the business moves to another location, or if it's taken over, and it isn't possible to employ you because of economic, technical or organisational reasons
  • Unreasonably refusing to accept a company reorganisation that changes your employment terms
Automatically unfair reasons for dismissal

It will be automatically unfair if your employer sacks you because you:

  • Exercise your statutory rights, like the right to written particulars of your terms and conditions
  • Are pregnant
  • Take/ask to take statutory maternity, paternity or adoption leave
  • Are or intend to be a trade union member, or refuse to join a union
  • Exercise your rights under the National Minimum Wage Act
  • Complain about a health and safety problem
  • Report wrongdoing at work ('whistleblowing')
  • Exercise your rights in connection with a statutory grievance or disciplinary procedure
  • Take part in official industrial action that lasts less than 12 weeks
  • Take time off for jury service
  • Ask to work flexibly if you've a right to do so
  • Exercise your rights under the Working Time Regulations
Your right to written reasons for dismissal

It is good practice for an employer to give reasons for dismissal. Employees with at least two years' continuous service (or one year's if their employment began before 6 April 2012) have the legal right to a written statement from their employers, giving the reasons why they've been dismissed, or why their fixed-term contracts haven't been renewed. You usually need to ask for this (verbally or in writing), and your employer should give it to you within 14 days of you asking.

A woman who's dismissed while pregnant or on maternity leave is always entitled to written reasons, irrespective of her length of service and whether she asks for them or not. The same applies to someone who's dismissed while on adoption leave.

If you have this right and your employer won't give you the reason for your dismissal, or if you don't think the reason given is the real one, you can make a complaint to an employment tribunal. You might first use your company's grievance procedure to make a complaint (but you don't have to).

People who aren't entitled to a written reason are:

  • 'Non-employees' (e.g. some contractors or freelancers and the armed forces)
  • Those who haven't completed the minimum qualifying period of continuous service with their employer when they're dismissed
If you think your dismissal was unfair, you can consider claiming unfair dismissal.

Where to get help

Acas offers free, confidential and impartial advice on employment rights issues.

Your local Citizens Advice Bureau (CAB) can provide free and impartial advice. You can find your local CAB office in the phone book or online.

If you are a member of a trade union, you can get advice, support and help from them.