Not everyone whose employment has terminated can bring a claim of unfair dismissal. There are some important qualifying criteria which you must satisfy otherwise you will not be eligible to bring an unfair dismissal claim. Only once you have understood whether you can bring a claim of unfair dismissal can you then go on and take advice about whether or not your dismissal was fair. We explain below the eligibility requirements for bring a claim of unfair dismissal in the employment tribunal.
- You were employed as an employee under a contract of employment. If you were self-employed or a worker then you can’t bring a claim. However, employment status is a complicated area, even if your employer tells you that you are self employed or a worker, you may in fact be (or, have become) an employee so it is always worth taking advice on what your actual status is.
- You were employed by your employer for at least two years. There are some narrow exceptions to this requirement, including if you were dismissed for a pregnancy related reason or for whistleblowing see our article: Can I bring an unfair dismissal claim if I haven’t been employed for two years or more? .
- You must have been dismissed. This includes both express termination by your employer -either with or without proper notice, the non-renewal of a fixed term contract and resignation in response to a serious breach of contract by your employer (this is known as “constructive dismissal”). For further information on constructive dismissal see our essential guide to constructive dismissal and our article: Is unfair dismissal and constructive dismissal the same thing?
- You must generally submit your claim to the employment tribunal within three months of the end of your employment. Employment tribunals do have a discretion to extend this limit if there is a very good reason for any delay but, they do so very rarely.
Was I dismissed fairly?
If you are eligible to bring a claim of unfair dismissal in the employment tribunal, the next question to be asked is, was I dismissed fairly? Employers cannot dismiss staff on a whim; they must have a genuine reason for doing so and the law lays down the limited circumstances in which an employee may be dismissed. If the reason you were dismissed does not fall into one of these categories then your dismissal will be unfair. Your employer should have informed you of the reason for your dismissal. The categories are:
- Capability (covering both lack of qualification or skills and sickness/injury).
- Illegality (where an employer cannot continue to employ you legally. For example, because your immigration status has changed or you work as a driver and have lost your driving licence).
- Some other substantial reason (a “catch-all” category which encompasses a broad range of possible reasons including loss of trust and confidence).
Note that it is generally no longer possible to force someone to retire i.e. to dismiss them solely because they have reached pension age.
For further information, read our article: What are the five fair reasons for dismissal?
What else makes a dismissal unfair?
Just because an employer can show it had a genuine reason for terminating your employment, it is not home and dry. It must still show that it acted reasonably in dismissing you. Broadly this means showing that it followed a fair procedure in carrying out the dismissal and that its decision to dismiss was within a band of reasonable responses which a reasonable employer may have taken in the same circumstances (the band of reasonable responses test).
How do I bring a claim?
You can bring a claim in an employment tribunal for unfair dismissal (if you are eligible).
No application fee is payable to bring a claim but you will have to pay for your own legal advice and this is unlikely to be recoverable in full (or at all). If you have home or other insurance you should check with your insurer as your policy may cover you for legal fees.
Claims can be made online or claim forms can be downloaded from: https://www.gov.uk/employment-tribunals/make-a-claim
How can we help you?
If your employment has been terminated or is under threat, talk to one of our employment law specialists today.