Being dismissed from a job without a warning or apparent reason is distressing and unfair. However, is it really unfair by law? According to UK employment legislation, employers are not obliged to justify firing employees if their total time working in the company is less than 2 years.
Does this mean that employees with years of service are totally helpless against unfair dismissal? Not really. Certain exceptions exist. In order to prevent or, in the event of a sudden dismissal, employees need to check what rights are available to them in the first place. Our article will help you look into this issue.
What Constitutes an Unfair Dismissal?
Several cases can be classed as unfair dismissal in the UK.
Legal Definition of Unfair Dismissal
In the UK, employees gain statutory protection only after two years of continuous service with the same employer. Those who have worked less can be dismissed without providing a fair reason for the dismissal, however, the obligation to go through a fair disciplinary or dismissal procedure remains valid. This means that the employer still has to provide notice of termination.
If you have worked more than 2 years for the same company and your employer cannot give a good or real reason for dismissing or/and doesn’t follow the company’s formal disciplinary or dismissal process, the dismissal is highly likely to be classed as unfair.
Examples of Unfair Dismissal
As mentioned, employees with less than two years of service aren’t defenceless. Should a dismissed employee prove a discriminatory or an automatically unfair reason for their dismissal, the protection under UK employment law applies immediately. It allows the employee to challenge the dismissal regardless of their length of service.
Situations that are automatically classed as unfair include:
- Asking for flexible working
- Refusing to give up working time rights
- Resigning and giving the correct notice period
- Becoming a trade union member
- Asking for time off for jury service
- Applying for maternity, paternity, and adoption leave
- Being on any maternity, paternity, or adoption leave
- Trying to enforce your right to receive Working Tax Credits
- Exposing wrongdoing in the workplace.
Protected Characteristics
If an employee can prove that the reasons for their dismissal are related to protected characteristics, they can claim automatically unfair dismissal and unlawful discrimination simultaneously. According to the Equality Act 2010, protected characteristics include:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex and sexual orientation.
Participating in an Industrial Action
If an employee takes part in a legal industrial action and gets fired because of this, their dismissal is classed as automatically unfair and can lead to a tribunal if:
- They take part that lasts 12 weeks or less (the days of the lock-out aren’t included in this period);
- They have been involved in an action that has lasted more than 12 weeks, and no reasonable steps have been taken to resolve the dispute.
Compulsory Retirement
Initiating the termination of an employee on the grounds of age is unlawful. The employer has the right to objectively justify it, for example, prove that the employee cannot fulfil their duties anymore. The chance is however high that the employer will be challenged at an employment tribunal anyway.
Unfair Dismissal Procedure
Whether an employee has reached two years of service with the company or not, the employer should still follow a fair procedure, as stated under the employee’s employment contract. If they fail to do so, it may be regarded as a breach of contract. This happens if the employer neglects to undergo an investigation into gross misconduct or capability issues or to provide a written warning before termination.
Breach of contract is viewed as unlawful treatment and enables the employee to make a claim to an employment tribunal as well.
If You’ve Been Unfairly Dismissed: Steps to Take
If you have reasons to suspect wrongful dismissal, it’s important to follow the proper legal procedures when challenging your employer.
Documenting Your Case
First, collect all the proof:
- Note the date of your dismissal, any meetings or communications leading up to it, and any incidents you believe could have contributed to it.
- Prepare copies of all emails, messages, and letters from your employer somehow related to your dismissal, performance, or workplace behaviour.
- Have a copy of your contract, especially the pages stating your terms of employment, notice period, and termination.
- Request relevant company policies (dismissal, disciplinary, or grievance procedures) to see if the employer followed its own rules.
- Write down instances where you felt mistreated, with dates, events, locations, and people that could support your claim.
- If you had positive feedback, reviews, or recent promotions, they will help you counter claims that you were dismissed for poor performance. Mention the steps you took to improve in case you were given warnings or development plans.
- If you filed any grievances or complaints about mistreatment, bullying, or discrimination before your dismissal, gather documentation related to them. Keep records of how your employer responded (or failed to respond) to your grievances.
- An unfair dismissal can also affect your entitlements. Ensure you have copies of all pay slips, final pay, and benefits.
Initiating an Employment Tribunal Claim
The unfair dismissal claim can be made within three months after the end date of your employment. Before claiming an employment tribunal, you must inform Acas (Advisory, Conciliation and Arbitration Service) about your intention. Acas assists in finding ways to agree without going to the tribunal. While the procedure is going on, the period for making a claim is paused.
Interim Relief
If the reasons for your dismissal include trade union activities, acting as a workers’ representation, or whistleblowing, you can apply for interim relief. It means your paid employment will continue until your case is resolved. The claim has to be made within 7 days after your dismissal.
Support from Trade Unions and Legal Aid
To secure the best possible outcome, you may also consider getting legal help or advice from a solicitor. Your trade union may be able to cover these costs.
If you live in England or Wales, you can also get free legal advice from:
- Citizens Advice
- Employment Lawyers Association
- Law Centres Network
- Law Works
Citizens of Scotland may seek help at:
- Citizens Advice Scotland
Those who have faced discrimination can consult the Equality Advisory and Support Service.
Possible Outcomes of a Tribunal
The respondent (in our case, the employer) has to reply to the employee’s claim in writing within 28 days after receiving it. After they’ve replied, the tribunal will decide whether a full hearing is required to decide your case. If the respondent does not reply to the claim, the tribunal may decide your case without a full hearing.
If you win your case
Depending on the type of case, the tribunal orders the losing party (the employer) to do certain things, including:
- Paying you compensation
- Covering all witness expenses
- Providing solutions that reduce the effects of discrimination against you
- Giving you your job back.
The amount of compensation depends on:
- The type of case
- Your financial loss as a result of the respondent’s actions
- Your age, salary, and length of service.
If the respondent ignores the order
The employer has 42 days to appeal the decision of the employment tribunal. If they do so, they don’t have to pay you compensation. If they neither appeal nor pay you, you can:
- Contact them to find out why;
- Ask to have them fined and named online by the government by filling in the penalty enforcement form;
- Ask a court to force them to pay.
Settlement Agreements
If you manage to reach an agreement through Acas, they will inform the tribunal about your outcome. If you settle your dispute privately, you must inform them personally.
Preventing Unfair Dismissal
Unfair dismissal oftentimes comes out of the blue, and this is the toughest part about it. However, knowing your rights as an employee will never hurt, and may even positively influence the course of the case.
Knowing Your Rights from the Start
If you want to recognise and address unfair treatment or violations of your rights effectively, you must know your employment rights. You can find all the necessary information here:
- The official government website GOV.UK
- Acas (Advisory, Conciliation and Arbitration Service)
- Special organisations, like Citizens Advice
- Ask your trade union for help
- Consult solicitors or employment layers
- Your company’s HR department.
Seeking Early Resolution
Last but not least, remember the power of open communication. It sometimes gives a chance to resolve misunderstandings or disputes before they escalate. If your attempts to come to an agreement with your boss led to a dead end with no results, don’t keep it to yourself. Inform your HR department about the case and consult your trade union or a solicitor on the issue. In such a way, you ensure that your concerns are formally addressed and will be handled fairly and professionally. At least, you can have a fair dismissal procedure if there is a genuine reason for dismissal.
