Are you asking yourself: “Is my dismissal fair?”
Do you watch The Apprentice? It’s a TV series where entrepreneurs compete to win up to £250,000 investment and 50:50 partnership with Sir Alan Sugar. If a candidate’s team fails the weekly task, and they get nominated by the project leader, he may point a finger at them across the boardroom table and announce: “You’re fired”. Viewers then see the dismissed candidate being driven off in a black taxi, often complaining that he’s made the wrong decision.
In real life, getting fired doesn’t work quite like that.
You might call it “getting sacked”. The legal term is “dismissal”. This article tells you when a dismissal is fair, and when it’s not. If not, what you can do about it.
When can you be dismissed fairly?
In certain situations, your employer has the right to dismiss you.
- When you’re not capable of doing your job properly. Maybe your performance is poor or you’ve been off sick a lot
- Because you’ve behaved badly. This is called “misconduct” or “gross misconduct” if, for example, you’ve been violent or undertaken criminal activity
- If there’s a legal reason why they can’t keep you on, for example, you’ve lost your driving licence (for a driving job) or you’ve lost your right to work in the UK
- If your role is being made redundant. In that case, there are different rules your employer should follow
- Due to ‘some other substantial reason’. Although those reasons are not listed in law, your employer will have to show they had a good reason for dismissing you
Have you actually been dismissed?
- Has your employer sent you an official termination letter, email or text message saying you’ve been dismissed?
- Did they end your contract of employment, with or without notice?
- Have they refused to renew your fixed-term contract?
- Were you dismissed because you went on strike?
- Did they stop you from coming back to work after maternity leave?
In those scenarios, you have been dismissed.
If your role has been made redundant, or you chose voluntary redundancy, other rules apply. Check our articles on redundancy for full details. You’ll find a few links below.
If you resigned because your employer did something to breach your employment contract, it might be “constructive dismissal”. That’s a whole other topic! Please see the link below for more information about that.
If you’ve been suspended or resigned by choice, you have not been dismissed.
Were you dismissed unfairly?
Even if they have a good reason to let you go, your employer has to follow a fair process when dismissing you.
For example, if you’re pregnant or have worked there for at least two years, you have the right to get a written explanation by letter or email. If they don’t do this, you can ask for an explanation within two weeks (do this in writing, so you have a record of your request). They don’t have to provide all the details or include all the evidence they’ve collected against you. They do have to use simple non-legal language, and enclose any attachments they mention, such as your contract of employment.
Was your dismissal automatically unfair?
- Were you pregnant or on maternity leave?
- Did you ask for your legal rights at work, for example to be paid minimum wage?
- Are you a trade union member who took part in trade union activities including official industrial action, or you were acting as an employee representative?
- Did you work in a shop or betting shop, and opt out of working on Sundays?
- Was the business was transferred to another employer?
- Did you fail to declare a spent conviction when you joined?
- Did you report your employer for wrongdoing – known as “whistleblowing”?*
- Did you take action about a health and safety issue?*
If you were dismissed for any of the above reasons, it’s automatically unfair and you have the right to make a claim.
*In the last two situations, you might be able to get paid while you apply to the employment tribunal. This is called “interim relief”.
Was your dismissal discriminatory?
There are certain characteristics which are protected in law. These are usually things you can’t change, which is why it’s not fair to be discriminated against for these reasons. It’s also unfair to be dismissed because of them.
- Pregnant or on maternity leave
- Your race, ethnicity or country of origin
- Married or in a civil partnership
- Man, woman or transgender
- Lesbian, gay, bisexual
- Disabled
- Hold a particular religion or set of beliefs
- Older or younger than the people you work with
You might be able to make a claim for discrimination as well as unfair dismissal, depending on the situation. We can advise you about that.
When can you make an unfair dismissal claim?
To make an unfair dismissal claim, you’ll need to:
- Be an employee (not self-employed or an agency worker)
- Have worked there for two years or more
- Have been dismissed for a reason that the law says is unfair
- Apply within three months less a day from your last day of employment
What you can do
You can ask the organisation you work for to reconsider your dismissal and give you your job back.
The Employment Rights Act (ERA) 1996 set out the rights of employees in situations such as dismissal, unfair dismissal, parental leave, and redundancy.
We’re employment law specialists who can advise you what to do and your chances of winning. The first step is an initial conversation.
As well as all the questions in this article, here are some of the things we’ll need to know:
- Did your employer treat you in the same way as other employees in similar situations?
- Did they try to help you overcome any issues, for example by giving you more training to help your performance?
- Have they followed a fair procedure to investigate any problems and to choose whether to dismiss you?
As you can tell, dealing with dismissals can be a complex situation, but we’re here and happy to help – and we won’t point a finger at you like Sir Alan Sugar!
Related reading
You might find our other articles on this subject useful. Here are just a few:
- Can I claim for constructive dismissal if I resign?
- Reliable checklist to see if you’ve been unfairly dismissed
- Unfair dismissal claim: Over £2.5 million awarded to cancer patient
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