Have I been unfairly dismissed?

Being dismissed is often an emotional and challenging time for employees and it can be difficult to determine whether you have been dismissed fairly or not.

The reality is however that if you have been unfairly dismissed, it is vital that you act fast.

What is unfair dismissal?

If you are an employee and have at least two years’ service, you are protected from being unfairly dismissed. This means that you are entitled to a fair reason for dismissal and your employer must carry out a full and fair process.

Unfair dismissal occurs where the reason for dismissal or the process carried out is deemed to be unfair. If your dismissal is deemed unfair, you can present a claim for unfair dismissal to the employment tribunal (if you have at least 2 years’ service).

What constitutes a dismissal?

If you are made redundant or ‘fired’ then this constitutes a dismissal. In addition, if you have been subjected to discriminatory or unfair treatment and resigned as a result of this treatment, this may also constitute a dismissal (known as constructive dismissal).

Fair reason

There are 5 potentially fair reasons for dismissal. These are as follows:-

1. Conduct – this relates to inappropriate behavior by the employee;
2. Illegality – this relates to an illegal act by the employee;
3. Redundancy – for example, where there is no longer a requirement for the employee’s role;
4. Capability – this is usually linked to the employee’s performance; and
5. Some other substantial reason (SOSR) – this is the catch all reason and examples include where an employer has decided to reorganise its business.

Fair process

If you have been dismissed for a fair reason, your dismissal may still be unfair if a full and fair process has not been carried out by your employer in dismissing you.

What amounts to a fair process will depend on the fair reason relied upon and your individual circumstances. Employers normally follow their own policy and procedure and should comply with the Acas code of practice.

For example, in relation to a redundancy situation, an unfair process may include a failure to carry out consultation with you; a failure to inform you of your risk of redundancy and/or a failure to provide you with an opportunity to appeal the decision to dismiss you.

How long do I have to bring a claim to the employment tribunal?

If you have been unfairly dismissed, you must bring a claim to the employment tribunal within 3 months less a day from the date of your dismissal. This is known as the limitation date.

Before a claim is presented, you must inform Acas that you intend to bring an employment tribunal claim. Acas is an advisory service and will offer you the option to engage in discussions with your employer to see if an agreement can be reached between you to prevent the need to issue a claim (this is known as early conciliation).

When Acas has been contacted, this will “stop the clock” for your deadline to present a claim to the employment tribunal. Once Acas has given you an early conciliation certificate, you must then re-calculate your deadline to present a claim.

Automatic unfair dismissal

There are some reasons for dismissal that will be automatically unfair regardless of the process carried out by the employer. Examples include:-

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

For a dismissal as a result of any of the reasons above, you do not need 2 years’ service in order to bring a claim for automatic unfair dismissal.

How can we help you?

If you are unsure as to whether you have been unfairly dismissed or would like advice on pursuing a claim at the employment tribunal our experienced employment team would be happy to assist you. Please contact our Trainee Solicitor, Rebecca Bennett on 01202 057747 or email rebecca.bennett@ellisjones.co.uk.