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.
- 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
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
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.
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.
If someone thinks they've been discriminated against
If someone thinks they've been unfairly dismissed because of a 'protected characteristic' – for example age, disability or race – 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 and how to make a claim
A claim must be made within 3 months less 1 day of 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 the employee was dismissed if the employer did not give notice
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.
Contact the Acas helpline
If you have any questions about unfair dismissal, you can contact the Acas helpline.