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 must also act fairly in the procedure they follow. If they don't the dismissal may be unfair and an Industrial Tribunal can increase any award for unfair dismissal by up to 50%.

You normally need at least a year's service 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 and at the minimum, they should comply with the statutory disciplinary, dismissal and grievance procedures set out in the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 ('the SDDG procedures'). The Department for Employment and Learning has produced guidance on the SDDG procedures.

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

Employers must follow the statutory dismissal procedures before they can lawfully dismiss an employee who has 12 months or more of service. If they don't, the dismissal is automatically unfair.

Even if you don't have 12 months' service, it will be automatically unfair if they sack you because, for example, 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. Most employees 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 Industrial 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 a year's 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

  • The Labour Relations Agency (LRA) offers free, confidential and impartial advice on all employment rights issues. You can call the LRA helpline on 028 9032 1442 from 9.00 am to 5.00 pm Monday to Friday.
  • 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 help, advice and support from them.