Introduction

Being dismissed from your job can be shocking and more often, it can feel unfair. However, your employer is allowed to dismiss people for a fair reason and through a correct and fair procedure. Your first step should be to consult your employer’s disciplinary procedure to ensure that they have acted in obeyance with their policies.

 

Is my dismissal unfair?

To find out if your dismissal is unfair, you will need to consider:

• Your ‘employment status’;
• How long have you worked for your employer; and
• Would the law consider that the dismissal was legally unfair?

 

This is because to bring a qualifying claim, you will need to be an employee (i.e., you cannot be an agency worker or self-employed) and you will need to have sufficient length of continuous service (two years where employment started post-April 2012, with no breaks of service). This two-year period does not apply in certain situations.

 

Your employer has to show that they have dismissed you with one of these reasons: There are five potentially fair reasons for dismissal:

• Redundancy – the role no longer exists/ end of a fixed-term contract;
• Conduct (misconduct) – one incident or more commonly a string of small incidents of misconduct;
• Capability – underperformance/ ill-health (employers have to demonstrate that they used a fair process);
• Contravening a statutory enactment – illegality – e.g., delivery drivers who have lost their licence cannot continue their job – or your visa has been revoked; and
• Some other substantial reason (a ‘catch-all’) - usually used in addition with one of the above.

 

Dismissal due to redundancy.

As an employee, you can appeal against being made redundant if you believe you were unfairly selected or your employer did not follow a fair redundancy process. You will need to check your employer’s policies and procedures, or any collective agreements that have a bearing on redundancy appeals. If your employer’s redundancy policy gives a right to appeal, then you should be offered one. Failure to do so could amount to an unfair dismissal (assuming you have more than 2 years of service).

 

As well as having a fair reason, an employer must follow a fair process. Many employers have a grievance, disciplinary and dismissal processes that they are required to follow. Make sure to check this. It is for the Tribunal to consider if it was reasonable in all circumstances for the employer to dismiss you.

 

Automatic reasons for unfair dismissal

These would include (but are not limited to):

• Being refused to give up your rights - for example, to take rest breaks;
• Not being given the correct notice period;
• Joined a trade union;
• You took part in legal industrial action that lasted 12 weeks or less;
• You needed time off for jury service;
• You applied for maternity, paternity and adoption leave;
• Tried to enforce your right to receive Working Tax Credits;
• Exposed wrongdoing in the workplace (whistleblowing); or
• You were forced to retire (known as ‘compulsory retirement’).

 

If you are dismissed because of these reasons, then it is automatically unfair, your employer will not get the opportunity to claim a fair reason or fair process.

 

How to Appeal your Dismissal - Early Conciliation

Before you make any claim to an employment tribunal (dismissal or any grievance) it is a good idea to try and resolve your workplace dispute by either raising your problem to your employer informally, e.g., with your line manager. If this is not possible, or you feel the issue is not being resolved you can raise a formal grievance. To see how to do this, ask to see your employer’s grievance and disciplinary policy.

 

You do not need to do this to bring a successful claim to an Employment Tribunal, but it could help you to resolve your dispute informally - easier and possibly a quicker solution - and crucially it could affect how much compensation you’re awarded if you were to make a successful claim at an Employment Tribunal.

 

ACAS Early Conciliation

In nearly every case, the ACAS Early Conciliation (EC) process is mandatory before starting your claim in the Employment Tribunal. ACAS will then talk to both you and your employer about your dispute. This is an opportunity for you to agree with your employer without having to go to Tribunal. This service is strictly confidential and is not part of the tribunal service. This process is free, voluntary (you or your employer can refuse to engage) and, by large, easier to prepare for than an Employment Tribunal. This process takes place over the phone and can last for up to 6 weeks.

 

Time Limits

A claim to an employment tribunal must usually be made within 3 months less than 1 day - this is known as the ‘limitation date’. E.g., If you wish to bring an unfair dismissal claim, you have 3 months less than 1 day from the date your employment ended to make the claim. If you are bringing a claim about redundancy pay or equal pay, the claim must be made within 6 months.