If an employee thinks their dismissal was unfair they might be able to challenge it.
It's important to understand what unfair dismissal means. It depends on the individual situation but the employee might have been dismissed fairly if:
- there was a fair reason
- the reason was enough to justify dismissing them
- the employer followed a full and fair procedure
Automatically unfair reasons
Some things are 'automatically unfair' if they’re the main reason for dismissing an employee.
- being pregnant or on maternity leave
- wanting to take family leave, for example parental, paternity or adoption leave
- being a trade union member or representative
- asking for a legal right, for example to be paid the National Minimum Wage
- doing jury service
- being involved in whistleblowing
- taking action, or proposing to take action, over a health and safety issue
Unfair dismissal because of a health and safety issue
Employees have the right not to be dismissed or treated unfairly ('suffer a detriment') because they've taken action over a health and safety issue, for example complaining about unsafe working conditions.
The dismissal might be classed as 'automatically unfair' if this was the main reason the employee was dismissed.
Taking action over a health and safety issue can include:
- raising a reasonable health and safety concern with an employer
- refusing to work in situations where the employee believes they or other people are in serious danger
- carrying out reasonable tasks as a workplace health and safety representative, for example advising others at work not to use a piece of equipment until adequate safety measures are in place
Other reasons for unfair dismissal
If the employer does not follow a full and fair procedure, an employee could have a case for unfair dismissal, even if the reason for dismissing them was valid.
The procedure the employer follows will be taken into account if the employee claims for unfair dismissal and the case reaches an employment tribunal.
If an employee feels they have no choice but to resign because of something very serious their employer has done, they might be able to claim for 'constructive dismissal'.
The legal term is 'constructive unfair dismissal'.
Appealing a dismissal
If an employee thinks their dismissal was unfair and wants to challenge it, they can appeal through their employer's appeal process. The employer should tell them how to appeal.
The employee may want to speak to their trade union if they have one or get legal advice.
Making a claim to an employment tribunal
If the employee has tried to appeal and wants to take it further, they may want to make a claim to an employment tribunal.
An employee usually has the right to make an unfair dismissal claim to an employment tribunal if:
- they have 'employee' employment status
- they've worked for their employer for 2 years
If they've been dismissed for an 'automatically unfair' reason it does not matter how long they've worked for their employer.
A claim must be made within 3 months less one day of the dismissal.
The employee must tell Acas first that they want to make a claim. Acas will offer them the option of 'early conciliation', a free service where Acas talks to both the employee and employer. It gives them the chance to come to an agreement without having to go to tribunal.
A 'wrongful dismissal' is when an employer has breached an employee's contract. It's usually to do with notice or notice pay.
Examples of wrongful dismissal can include:
- dismissing an employee without giving them a notice period or notice pay
- not giving someone the full notice period they're entitled to
If an employee wants to make a claim for wrongful dismissal, it does not matter how long they've worked for their employer.