An unfair dismissal happens when you are dismissed from your job and your employer doesn't have a valid reason for dismissing you and/or has acted unreasonably. It is often confused with wrongful dismissal which is an entirely separate claim. See below for more information.
Dismissal in this context of unfair dismissal is when your employer, with or without notice, ends your employment. It can also happen when a fixed-term contract isn't renewed or when an employer forces someone to retire. Dismissal can be done verbally or in writing.
Constructive dismissal is where your employer's actions (e.g. extreme bullying, unilateral demotion) force you to resign.
Summary dismissal is where you are instantly dismissed without notice or pay in lieu of notice – this may occur if you have committed an act of gross misconduct. It's impossible to list what amounts to gross misconduct in every case, but your employer's disciplinary procedure should include examples of the types of conduct that would normally warrant summary dismissal.
The law recognises that an employer may need to dismiss an employee but tries to ensure that the employer can only do so when it is reasonable and fair. Where an employer dismisses an employee without having a good reason or unfairly, the employee may have an unfair dismissal claim.
Unfair dismissal claims can only be brought in an Industrial Tribunal, and make up a substantial proportion of the cases heard there. Unfair dismissal claims are intended to protect employees from being unfairly dismissed, and give employees the opportunity to claim compensation in addition to any payments in lieu of notice or unclaimed holiday. A necessary element of this kind of claim is that it can only be used by employees. For more information, see our '' section. Unfair dismissal claims only deal with the actual dismissal itself. Other types of claims, for example, discrimination claims, can be entered at the same time but are separate.
Claims must be presented to the Industrial Tribunal within three months of the effective date of termination of employment (see below). These time limits are strictly enforced and therefore if you miss the deadline, the tribunal may refuse to hear your case.
The effective date of termination is defined as one of the following:
If you have been dismissed without notice but instead have been paid your wages for the notice period (a payment in lieu of notice), the effective date of termination is still the date you were told to go. In the case of constructive dismissal, the effective date of termination is the date of your departure.
In order to succeed in a claim for unfair dismissal, a tribunal must be satisfied that:
In certain circumstances, if your employer has investigated fairly and complied with the SDDG procedures, but come to the wrong conclusion (for example, if they have got the facts wrong), this will not necessarily mean the dismissal is unfair, so long as their decision to dismiss falls within a range of reasonable responses expected from a reasonable employer.
Your employer must be able to show that they have been consistent in the way that they have treated you and that you have not been dismissed for doing something that they normally let other employees do.
You may be able to claim unfair dismissal if you can show that you were dismissed for not following a particular rule or policy of your employer but were never told about the relevant rule or policy.
Wrongful dismissal is different from unfair dismissal. A wrongful dismissal occurs where an employer dismisses an employee and, by doing so, breaches the terms of the employee's contract.
The most common example is when an employee is dismissed without being paid their notice. It would also include circumstances where a fixed-term employee is dismissed before the end of the term and there is no provision in the contract to do so.
Claims for wrongful dismissal can be brought in either the Industrial Tribunal (within three months of the date of the dismissal) or before the courts (within six years of the date of dismissal). Ideally, proceedings should be issued as soon as possible, in order to avoid unnecessary delays and before recollections fade.
Some reasons for dismissal are automatically unfair. If a dismissal is automatically unfair, statute usually removes the normal need for the employee to have completed a minimum period of employment or to be below a specified age limit to qualify for unfair dismissal.
It is automatically unfair to be dismissed for:
It is automatically unfair to be dismissed for acting as an employee representative at:
It is automatically unfair to be dismissed for taking action on health and safety grounds, such as:
It is automatically unfair to be dismissed for exercising or seeking to exercise your rights relating to part-time or fixed-term working legislation. As a part-time or fixed-term worker, you should not to be treated less favourably than a full-time or permanent employee (e.g. you should be offered the same or equivalent employment rights and benefits). You cannot be dismissed fairly because you work part time.
It is automatically unfair to be dismissed for reasons relating to a trade union:
It is automatically unfair to be dismissed for taking part in protected (lawful) industrial action which:
It is automatically unfair to be dismissed for:
It is automatically unfair to be dismissed on grounds relating to a business transfer. If the business you work for is being transferred to another company or is being taken over, you may be protected under the Transfer of Undertakings (Protection of Employment) Regulations ('TUPE').
If you were dismissed for either of these reasons, you do not have to have the normal one year's service to take the matter to an Industrial Tribunal.
For more information, see our '' section.
A dismissal is 'potentially fair' if it's because of:
The article on reasons for dismissal can tell you the sort of steps your employer should follow to be able to show that they have acted reasonably.
Your employer must normally give you at least the notice stated in your contract or theguaranteed by law (if your employment contract does not state the notice to be given or the notice stated in it is less than the minimum allowed under the law) when dismissing you.
However, if the circumstances permit, your employer may dismiss you without notice if you have committed a fundamental breach of contract, such as gross misconduct (being a situation serious enough to dismiss you without first giving a warning (such as theft, fraud or violence). Your employer should always investigate the circumstance before dismissing – even in possible gross misconduct cases.
Your first step should be to appeal the decision to dismiss you under your employer's dismissal or disciplinary procedures, or if you have resigned and intend to claim for, by making a complaint under your employer's grievance procedure.
If an appeal fails, you and your employer could try mediation through the Labour Relations Agency (LRA), where a specialist helps you sort out the problem.
Another option is individual arbitration, where an independent arbitrator hears the case and makes a legally binding decision.
If the LRA has not been asked to act before you make a complaint to an Industrial Tribunal, they will offer to conciliate afterwards.
For more information, see our '' section.
You have a legal duty to minimise your financial losses (usually loss of earnings) after having been dismissed by your employer. This means you should begin looking for a new job as soon as is reasonably possible after being dismissed. While you are looking for a new job, you may be able to claim, Housing Benefit or Rate Relief.
It is important for you to ensure that the time limit for starting a claim in the Industrial Tribunal (three months from the effective date of termination of your employment) does not expire whilst you are seeking to use any of the above methods to resolve your dispute.
In certain circumstances, the normal time limit for submitting a tribunal claim can be extended by three months to give you and your employer the chance to sort out the dispute between you without involving the tribunal. The Department for Employment and Learning has producedunder the SDDG procedures.
If necessary, you may have to prepare and issue your claim at the Industrial Tribunal whilst in the process of appealing to your employer and/or using mediation in order to protect your rights.
Keep copies of any letters you send and written notes of meetings and telephone conversations, as these may prove useful if any attempts to resolve the issue have failed and you are considering making a complaint to an Industrial Tribunal.
If you haven't been able to sort things out directly with your employer, you may need to go to an Industrial Tribunal. Before doing so, you should
If you are successful, you could get your job back or receive compensation. You do not have to take your job back, but your compensation may be lowered if you unreasonably refuse.
In the majority of claims, the Industrial Tribunal awards compensation. Compensation is intended to put you where you would have been financially if you had not been dismissed. There is no compensation for hurt feelings.
A tribunal may reduce your compensation if it decides that your conduct played a part in your dismissal, or if you have failed to present a grievance to your employer where appropriate. Your compensation will also be reduced if you have failed to mitigate your losses.
If you are unsuccessful, then in exceptional circumstances, an Industrial Tribunal may order costs if it considers that you have acted unreasonably.
Industrial Tribunals have the power to order costs of up to £10,000 if they believe that a party has acted abusively, vexatiously, disruptively or otherwise unreasonably. In the light of this power, you should be absolutely sure that you have a valid claim before making your claim to an Industrial Tribunal; otherwise you will be exposed to the risk of a costs order being made against you.
If either party is of the view that the decision of the Industrial Tribunal is incorrect on a point of law, they have a right of appeal to the Court of Appeal and written notice must be given to the Secretary of the Tribunals within six weeks of the date that the decision is sent to you (usually found on the copy of the decision).
If the Industrial Tribunal makes an order, and either the employer or employee does not comply with it, then the matter will have to be transferred to the county court for the order to be enforced.
You may be able to claim payment for notice, holiday pay or final pay.