Protection against Unfair Dismissal

03 May 2018

Unfair dismissal is when an employer terminates an employee’s employment for reasons that are not fair in law or in a way that is unfair, unjust or unreasonable.

Employees in England and Wales are legally protected against unfair dismissal and can bring a claim in the Employment Tribunal if they believe they have been unfairly dismissed.

The deadline for making a claim for unfair dismissal is three months, less one day, from the date of dismissal, so it’s important to act fast if you wish to bring a claim.

Who Qualifies for Protection against Unfair Dismissal?

In order to be protected against unfair dismissal, the employee must be employed either full or part time, they cannot be self-employed. There is no minimum / maximum requirement for the number of hours that the employee needs to be contracted to work in a week or month.

If the employee has been dismissed for an automatically unfair reason (see below) then they will automatically be protected against unfair dismissal. If they have been unfairly dismissed for another reason, then they will only be protected after a certain period of time, as follows…

If the employment started before 6 April 2012 then the employee is protected against unfair dismissal after their first year of employment. If the employment started after this date then the employee is protected after two years of continuous employment.

The employee also needs to have been employed under a legal contract. So, for example, if someone under the age of 18 was employed to serve alcohol, then this would be an illegal employment contract and this person would not be protected against unfair dismissal.

In order to claim unfair dismissal, the employee cannot have reached a settlement with their employer (or former employer) through ACAS, a Settlement Agreement or a Compromise Agreement.

Automatically Unfair Reasons for Dismissal

There are some reasons for dismissing an employee which are automatically unfair. If an employee is dismissed for one of these reasons then they are entitled to make a claim for unfair dismissal, regardless of how long they have been employed.

Reasons for dismissal that are automatically unfair:

  • Pregnancy or maternity
  • Parental leave (including paternity leave and adoption leave)
  • Acting as an employee representative or trade union representative
  • Choosing to join or not join a trade union
  • Being employed on a part-time or fixed-term contract
  • Reasons relating to pay, annual leave or working hours (including in relation to the Working Time Regulations or the National Minimum Wage)
  • Whistleblowing
  • Taking part in official industrial action (this is automatically unfair if dismissed within 12 weeks from the start of the industrial action)

Other Reasons for Dismissal that could be Unfair

There are other circumstances in which a dismissal may be unfair, even though it does not fall into one of the above categories. For example, if an employee is forced to retire then this would be unfair unless the employer was able to justify their reasons for this. Similarly, if a disabled employee is dismissed because their employer couldn’t make reasonable adjustments for them then this may be unfair dismissal unless there really were no reasonable adjustments that could have been made in the circumstances. 

If the employer didn’t follow the correct disciplinary or dismissal procedure then an employee may be able to claim unfair dismissal even if the reason for the dismissal is fair. This is because the dismissal has not been carried out in a way that is fair and reasonable.

In addition, if it transpires that the reason given by the employer for the dismissal isn’t the real reason, then the employee may have grounds to make a claim for unfair dismissal on this basis.

How to Exercise Protection against Unfair Dismissal

If you believe that you have been unfairly dismissed, then it’s essential to obtain independent legal advice from an Employment Solicitor as early as possible. A claim for unfair dismissal can only be brought in the Employment Tribunal. However, to start a claim, you must first contact ACAS to start Early Conciliation within 3 months, less one day, of the dismissal date, so you should begin the process as soon as you can. 

At Co-op Legal Services, our Employment Law Solicitors can provide expert, impartial legal advice on unfair dismissal claims, without the jargon. We can discuss your individual circumstances and review your case to establish the prospects of your case succeeding and provide guidance on the next steps.

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