Facing dismissal from the workplace is often a very emotional and challenging time for employees and in some cases there may be question marks over whether the dismissal was fair or not.

If you have reason to believe that you have indeed been unfairly dismissed then it’s important to act as soon as possible.

What is a dismissal?

If an employee is made redundant or ‘fired’ from their job then this constitutes a dismissal from the workplace. If an employee has experienced discriminatory or unfair treatment and chose to resign as a result of this treatment, this may also potentially be constituted as a dismissal - commonly referred to as constructive dismissal.

What would be determined as unfair dismissal?

In the UK, all employee’s who have a minimum of two years’ service are protected from being unfairly dismissed. This means that an employee is entitled to a fair reason for being dismissed from their job and an employer is obliged to carry out a full and fair process.

The reason for the dismissal or the process carried out to reach the decision of dismissal is what may determine an unfair dismissal. If a dismissal is believed to be unfair, then an employee may choose to present a claim for unfair dismissal to the employment tribunal provided at least two years’ service has been accumulated.

Fair reasons for dismissal

There are several potentially fair reasons for dismissal. 

These potential reasons include:

Conduct - This would be anything that relates to an employee behaving inappropriately;

Illegality - This would be an illegal act carried out by an employee;

Redundancy - If an employee’s role is no longer required this could lead to a fair redundancy process;

Capability - This would be typically linked to the performance of an employee;

Some other substantial reason (SOSR) - This covers a wide range of reasons, but one example may be when an employer opts to reorganise the business.

The importance of a fair process

The reason an employee is dismissed from their employment may be fair, but the dismissal itself may still be unfair if the dismissal process wasn’t carried out full and fairly.

Employers usually follow their own process and should always comply with the Acas code of practice throughout, but this isn’t always the case. One of the most common forms of dismissal is a redundancy situation, but the process could be deemed unfair if, for example, there was a failure to carry out a consultation with the employee(s), a failure to inform the employee(s) of their risk to redundancy and/or a failure to provide an opportunity for any dismissed employee to appeal the decision

The employment tribunal

If an employee has reason to believe that they have been unfairly dismissed they have 3 months less a day from the date of the dismissal to bring a claim to an employment tribunal. This is referred to as the limitation date.

The employee must inform Acas of their intention to bring an employment claim before doing so. Acas are an advisory service and offer dismissed employees the opportunity to engage in discussions with the employer to see if an agreement is possible to prevent the need to bring a claim, known as an early conciliation.

When a dismissal is automatically unfair

In some cases the reason for dismissal will be deemed automatically unfair no matter what process was carried out by the employer.

Some examples of an automatically unfair dismissal include:

• Pregnancy and maternity;
• Joining a trade union;
• Acting as an employee representative or trade union representative;
• Raising health and safety concerns;
• Whistleblowing.

An employee does not need 2 years’ service to bring a claim for automatic unfair dismissal.

Do you have reason to believe that you have been unfairly dismissed from the workplace? If so, or if you’d like to discuss any of our employment law and other legal services in more detail, don’t hesitate to contact our expert team of solicitors so that we can offer professional advice and guidance. Contact us by calling 01495 303124, e-mail enquiries@fonsecalaw.co.uk or fill in our convenient online contact form.