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 done this.
Types of Dismissal
A dismissal can occur in three different ways:
- The employer terminates the contract with or without notice;
- The expiry of a fixed-term contract; or
- The employee leaving, with or without giving notice, in circumstances in which they are entitled to do so because of the employer’s conduct, e.g. because of a grievance outcome (this is known as constructive dismissal).
Is my dismissal unfair?
To find out if your dismissal is unfair, you will need to consider:
- What is your ‘employment status’?
- How long have you worked for your employer?
- Does the law consider your dismissal 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 does not mean that an employee with less than two years of service has no potential claims. There is no requirement under automatic unfair dismissals.
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 – your employer will have to demonstrate that they used a fair process – so retraining, etc,
- Contravening a statutory enactment – illegality – e.g. delivery drivers who have lost their licence cannot continue their job – or your visa has been revoked.
- Some other substantial reason (a ‘catch-all’) – usually used in addition to one of the fair reasons.
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 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 processes that they are required to follow.
Automatically unfair reasons for dismissal include (but are not limited to):
- Jury service
- Pregnancy or exercising rights relating to maternity leave or other leave
- Raising a health and safety issue
- Asserting various statutory rights
- Making a protected disclosure (‘whistleblowing”).
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 claim ET).
Employment Tribunal.
This process takes place over the phone and can last for up to 6 weeks. There are certain exemptions from the early conciliation process but these are very rare.
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. If possible, resolving workplace disputes in early conciliation is always preferable. However, we recognise that this cannot always be the case. The next steps are to consider lodging a claim with the Employment Tribunal. Here is a brief overview of the timeline and relevant forms to launch a claim.
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