It's important to understand what unfair dismissal is by law. This is because different rights might apply depending on the circumstances.
It might be unfair dismissal if an employee worked for their employer for at least 2 years and any of the following apply:
- there was no fair reason for the dismissal
- the reason was not enough to justify dismissing them
- the employer did not follow a fair procedure
The fair procedure must follow the Acas Code of Practice on disciplinary and grievance procedures, if it's to do with:
- unacceptable or inappropriate behaviour ('misconduct')
- performance ('capability'), unless it’s about illness
If the dismissal is because of another reason, it's a good idea to use the Code of Practice to inform the fair procedure.
Dismissal before someone has worked 2 years
If someone is dismissed before they have worked for their employer for 2 years, they will need to check what rights are available to them. This is sometimes known as 'short service dismissal'.
Depending on the reason for the dismissal, one of the following might apply:
- automatically unfair dismissal
- wrongful 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.
Being able to appeal a dismissal is also part of the Acas Code of Practice.
The employee may want to speak to their trade union if they have one or get legal advice.
Automatically unfair reasons
Some things are 'automatically unfair' if they're the main reason for dismissing an employee.
- making a flexible working request
- 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
- taking part in legal, official industrial action for 12 weeks or less, for example going on strike
- asking for a legal right, for example to be paid the National Minimum Wage
- doing jury service
- being involved in whistleblowing
- being forced to retire (known as 'compulsory retirement')
- taking action, or proposing to take action, over a health and safety issue
An employee does not need 2 years' service to claim automatically unfair dismissal.
Unfair dismissal because of a health and safety issue
An employer must not cause someone 'detriment' if they:
- reasonably believe being at work or doing certain tasks would put them in serious and imminent danger
- take reasonable steps over a health and safety issue, for example complaining about unsafe working conditions
- inform their employer about a health and safety issue in an appropriate way
Detriment means you experience one or both of the following:
- being treated worse than before
- having their situation made worse
Examples of detriment could be:
- their employer reduces their hours
- they experience bullying
- they experience harassment
- their employer turns down their training requests without good reason
- they are overlooked for promotions or development opportunities
If an employee is dismissed and one of these health and safety issues is the main reason, it might be classed as 'automatically unfair'.
Unfair dismissal because of industrial action
Employees cannot be dismissed for taking part in industrial action if:
- it's called as a result of a properly organised ballot
- it's about a dispute between them and their employer (for example, about terms and conditions)
- the employer receives a legally required, detailed notice about the industrial action at least 7 days before it begins
- they take part in the action at any time within the 12 weeks from when it began
Non-union members have the same rights as union members not to be dismissed if they take part in legal, official industrial action.
After 12 weeks, employees could be dismissed for taking part in industrial action if the employer has tried to settle the dispute. For example, the employer may have asked Acas to help find a solution.
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'.
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.
If someone thinks they've been discriminated against
If someone thinks they've been unfairly dismissed because of race, sex or another 'protected characteristic', this could be discrimination. They could make a claim to an employment tribunal for both discrimination and unfair dismissal.
For the discrimination claim, they do not need to have worked for their employer for 2 years.
When to make a claim
There are strict time limits for making a claim to an employment tribunal. Someone has 3 months minus 1 day from the date their employment ended.
In almost all cases, the date someone's employment ends is either:
- the last day of their notice period
- the day they were dismissed if the employer did not give notice
Find out more about:
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.
Contact the Acas helpline
If you have any questions about unfair dismissal, you can contact the Acas helpline.