It is unlawful for an employer to dismiss an employee unfairly. However, an employer is entitled to dismiss for a fair reason, provided it follows a fair procedure in carrying out that dismissal. So, what actually amounts to an unfair dismissal entitling someone to bring a claim in the employment tribunal?

Longer serving employees – those who have been employed for at least two years – have the legal right not to be unfairly dismissed. This is set out in section 94 of the Employment Rights Act 1996 (ERA).

An employee who believes they have been unfairly dismissed can bring a claim in the employment tribunal without having to pay a fee. But, in order to win any such claim and be awarded compensation they must show either:

  • that their employer did not have a fair reason for dismissing them; and/or
  • that their employer did not follow a fair procedure in carrying out their dismissal

The five fair reasons for  dismissal

The law does not allow employers to simply dismiss employees on a whim. It only permits dismissals  for five defined reasons, namely:

  • misconduct
  • capability – this includes medical capability as well as the ability/skill to do the particular job
  • redundancy – this has a specific legal meaning
  • illegality where employment is unable to continue without breaching the law e.g. due to change in immigration status or loss of driving license
  • some other substantial reason – this is a “catch all” category for any other legitimate reason such as a break down in the relationship between the parties.

Any dismissal for no reason or, a reason which does not fall into one of these categories will be unfair.

Note it is no longer lawful to dismiss someone solely because they have reached a certain age i.e. for retirement.

Employees who have been employed for at least two years have a right to receive written reasons for their dismissal from their employer and should always ask for this, if it is not provided. Employers must respond within fourteen days of such a request (section 92 ERA).

In some cases the employer may say that they are dismissing for a certain reason but, this is not in fact the case. Where evidence can be produced to the tribunal showing this then the dismissal will be unfair.

What if my employer can show a fair reason for dismissal?

Even if your employer can point to a legitimate reason which falls under one of the fair reason categories set out above, the dismissal will still be unfair if they have failed to follow a fair procedure.

What constitutes a fair procedure will vary according to the reason for the dismissal. However, it is very easy for employers to get the procedure wrong and employment tribunals are very hot on process so will often find in favour of an employee on this ground.

For more information on what a fair procedure looks like, read our article: has my employer followed a fair procedure in dismissing me? 

How can we help?

If you think you have been unfairly dismissed or fear you might be, speak to one of our employment specialists today. We will help you figure out the best way forward for you.

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