In today’s article, we will examine what happens when an employer unfairly sacks an employee, which is known as unfair dismissal. You can read our fair dismissal article, which explains the circumstances in which your employer can dismiss you fairly, by clicking here.
While employers are allowed to dismiss (also known as sack) their employees, there are certain rules which they must conform to. This includes having a legitimate reason for dismissing an employee, as well as the process followed when dismissing an employee. Like fair dismissal, unfair dismissal is also set out in the Employment Rights Act 1996.
When might a sacking be classed as unfair dismissal?
The first thing to establish is the basic facts about the dismissal. It might be unfair dismissal if any of the following apply:
- An employee worked for their employer for at least 2 years
- There was no fair reason for the dismissal i.e. the reason given was not the real one
- The reason was not enough to justify dismissing them. Hence it is deemed unfair.
- The employer did not follow a fair procedure e.g. failing to give warning prior to the dismissal
If you have been dismissed, then your employer should automatically tell you the reason for the dismissal. If they don’t, you can ask them for this information.
What reasons are automatically classed as unfair dismissal?
Even if an employer has acted reasonably, some reasons for dismissal are classed as automatically unfair. These reasons can be relied on by employees who have worked for their employer for less than two years when it comes to an unfair dismissal claim. These include the following:
- pregnancy, including all reasons relating to maternity
- family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
- acting as an employee representative
- acting as an occupational pension scheme trustee
- joining or not joining a trade union
- acting as a trade union representative
- took part in legal industrial action that lasted 12 weeks or less
- being a part-time or fixed-term employee
- reporting certain types of wrongdoing in the workplace – known as whistleblowing
- were forced to retire (compulsory retirement)
What if you think you have been discriminated against?
If you think you have been discriminated against because of a protected characteristic, this could be classed as discrimination under the Equality Act 2010. As a result, this could mean that you are able to make a claim to an employment tribunal for both discrimination and automatic unfair dismissal. We covered a case involving a solicitor fired due to direct race discrimination here.
Protected characteristics include the following:
- age
- disability
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- race
- religion or belief
- sex
- sexual orientation
Furthermore, if you work more than one job, your dismissal can also be classed as automatically unfair if the following apply:
- if you are on a zero hour contract
- if your average weekly wage is less than £123 per week
How long do you have after dismissal to make a claim to an employment tribunal?
If you believe that you have been dismissed unfairly, it is important that you act promptly. Following dismissal, you have just three months minus one day from the date your employment ends to make a claim to an employment tribunal. However, prior to this you need to inform Acas (Advisory, Conciliation and Arbitration Service) of your intention to file a claim.
Acas will provide you with the opportunity to resolve the conflict through their complimentary ‘early conciliation’ service before resorting to tribunal proceedings. Furthermore, if you are a member of a trade union then it is advisable then you speak to your trade union representative.
If you were given a notice period, this date will be from the date that your notice period ends. If you were not, then it will the date you were dismissed from your job.
How can you challenge a dismissal?
If, after assessing the criteria, the employee thinks their dismissal was unfair, and more importantly, they want to challenge it, the employee can appeal through the employer’s appeal process. If your employer fails to give you the opportunity to appeal, this can be held against them if the case later goes to an employment tribunal. Your employer should explain the process of appeal in their disciplinary and grievance policy. You should appeal the dismissal in writing to your employer if the process is not explained in their policy.
The appeal process will consist of your employer taking another look at your case to assess if the procedure was followed fairly and the outcome was fair. The person who carries out your appeal and investigation must not have been previously involved in your case in order to make it as fair as possible. Where possible, they should also be senior to anyone who carried out your case previously.
Our thoughts
In summary, it is important to note that unfair dismissal is not a desirable outcome for anyone, either employers or employees. For employers, it can result in costly legal action and/or the reinstatement of the employee, while for employees it means the loss of a job, either temporarily or permanently. This causes divisions which may be unlikely to dissipate.
To foster and maintain a healthy working environment, employers and employees should be aware of their rights and responsibilities at work, notwithstanding the dismissal process. We would recommend that employers should always follow the correct procedures when dismissing an employee, as well as ensuring that they do not dismiss staff for a reason which is not legitimate.
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