Dismissal

Key points

• A dismissal occurs when an employer terminates an employee's contract
• A dismissal should be a last resort, following a thorough investigation to establish facts
• Employers must use a fair and consistent procedure/policy when deciding whether to dismiss someone. The ACAS Code of Practice on Discipline and Grievance sets out the principles employers should follow.
• Employees have the right not to be unfairly dismissed. If they have been, they may be able to make a complaint to an employment tribunal.

Types of dismissal include:

• fair dismissal 
• unfair dismissal
• wrongful dismissal
• constructive dismissal
• summary dismissal (i.e. without notice), and
• automatically unfair dismissal.  

Unfair dismissal

Unfair dismissal is the legal expression used when a contract is terminated without good reason and/or your employer has failed to follow a fair procedure.

To avoid or defend an unfair dismissal claim your employer will have to show that the reason for the dismissal is one of the following potentially fair reasons:

• incapability
• misconduct
• redundancy
• breach of a legal requirement, or
• 'some other substantial reason'.

In addition, the employment tribunal will have to be satisfied that your employer acted reasonably in relying on that reason for dismissal.

Please see information about time limits and qualifying periods below.

Wrongful dismissal

Wrongful dismissal arises when your employer either terminates your contract without appropriate contractual or statutory notice, or breaches a fundamental term in your employment contract which forces you to leave without notice. Dismissal (i.e. termination of the contract) can be both wrongful and unfair, for wrongful dismissal, however, there is no service qualification period to make an employment tribunal or civil law claim for your salary in lieu of your notice entitlement.

Please see information about time limits below.

Constructive dismissal

This is when you resign from your job because of your employer’s behaviour/breach of your contract. You would need to show that:

• there has been a serious breach of contract by the employer, and
• you felt that you had no alternative but to leave as a result of that breach.

There must be a serious and fundamental breach of your contract. Possible examples include:

• sudden demotion for no good reason
• changes to your conditions of employment without your agreement such as relocation without notice, or making you work night shifts when your contract states only day work
• unpaid wages
• bullying, harassment or violence against you by work colleagues where your employer has failed to address the issues or take appropriate action
• not undertaking risk assessments and making you work in dangerous conditions.

The breach could be a one-off significant incident, or a series of perhaps more minor incidents which, together, amount to a fundamental breach of contract.

Contact us for advice before resigning in these circumstances.

Please also see information about time limits and qualifying periods below.

A person who believes they have been unfairly dismissed will only be able to bring a claim to an employment tribunal if they satisfy certain criteria. They must:

• have employee status, rather than self-employed or worker status
• have been dismissed
• bring the claim within three months of dismissal (see below)
• not fall within one of the classes of employee who are excluded from the right to claim unfair dismissal (such as police officers and members of the armed forces, for example)
• have worked for their employer for the applicable qualifying period.

In most cases, a claim to an employment tribunal must be received by the tribunal within three calendar months less one day of the date on which your employment is terminated.

For example, if your effective date of termination was 19 March 2013, then your unfair dismissal claim must be received by the employment tribunal no later than 18 June 2013. If this date is a Saturday or Sunday or Bank Holiday then the claim must be received by the Friday or the working day before the Bank Holiday.

Early conciliation

Time limits are affected by the ACAS early conciliation scheme.

Before lodging an employment tribunal claim, all claimants will need to notify ACAS and conciliation will be offered. If conciliation is unsuccessful, the claimant can proceed to lodge a tribunal claim.  The length of the conciliation period will have an impact on the deadline for presenting an employment tribunal claim. For further advice, please contact us. 

Please see the ACAS guidance on early conciliation. For Northern Ireland, read the Labour Relations Agency's advice on pre-claim conciliation. 

Qualifying periods

In general, to lodge a claim in England, Wales or Scotland you must have been employed continuously for two years. In Northern Ireland, you must have had one year’s continuous service with your employer.

However, wrongful dismissal and automatic unfair dismissal claims (see below) have no continuous service qualifying periods for lodging a employment tribunal claim - your rights are applicable from day one of employment. Please see exceptions below.

Exceptions

Dismissals for the following reasons (for example) are automatically unfair and therefore there is no requirement for the employee to have worked for their employer for any qualifying period of employment:

• raising health and safety concerns
• pregnancy
• asserting a statutory right
• dismissals relating to union membership or non-membership
• transfer of an undertaking unless an economic, technical or organisational reason applies
• certain redundancy dismissals relating to trade union membership or activities.

There are circumstances in which employees may, following termination of their employment contract, be able to make other types of legal claim to a tribunal regardless of the length of time they have worked for their employer, such as in cases of unlawful discrimination.

You are entitled to written reasons for your dismissal provided you meet the minimum qualifying period outlined above. If your employer unreasonably refuses to give written reasons then you may bring a claim to an employment tribunal within three months of the effective date of termination of your employment.

If you have been dismissed from your job, please contact us for further advice. It is important to obtain advice promptly as there are strict time limits for lodging claims with an employment tribunal (industrial tribunal in Northern Ireland).

Most claims to an employment tribunal must be made within three months minus one day from the date of the act(s) you are complaining about. In an unfair dismissal claim it would be three months from the date of dismissal. If, for example, you were dismissed on 1 February the claim would need to be lodged with the tribunal on or before 30 April.

Identifying the actual date of termination for the purposes of an unfair dismissal claim is not always easy, so seek advice as soon as possible.