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In most cases (although there are specific exceptions), employees must have been employed for a period of two years or more in order to be eligible to bring an unfair dismissal claim.

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An employer must show that a dismissal was for one of five permitted reasons:

Conduct

An employer may be able to rely on the employee’s conduct as a fair reason for dismissal. In some instances, the employee’s conduct may be so serious that it is considered fair to terminate the employee’s conduct with immediate effect and without notice pay. This is usually referred to as dismissal on the grounds of ‘gross misconduct’ or ‘summary dismissal’. In other scenarios dismissal may follow after a series of warnings to the employee about their conduct. In both cases it is important for the employer to show that dismissal is reasonable in the circumstances.

Redundancy

A redundancy situation arises where the employer is planning to close down its business/ part of the business, at the location where employees work, or where the business no longer needs as many employees to carry on a particular kind of work.

In order for a redundancy dismissal to be fair, a full and proper procedure must have been carried out. Failure to do so may result in the employee successfully demonstrating that their dismissal was unfair. A fair procedure would often involve identifying the appropriate individuals to place at risk of redundancy and applying fair and objective criteria to identify who should remain in their existing roles. The employer is under an obligation to explore suitable alternative employment for the employee prior to terminating the employment on these grounds.

Where 20 or more employees are to be made redundant within a period of 90 days, this becomes a ‘collective redundancy’, meaning that the employer is required to follow a specific information and consultation procedure prior to dismissing the employees. In a Collective Redundancy, the employer would be required to provide a minimum of 30 days’ consultation, 45 days where there are 100 or more employees to be made redundant.

Capability

If an employee is not sufficiently competent to do the job for which they have been employed, or if they are ill and are absent from work for long periods of time, then their dismissal on the grounds of capability may be reasonable. As well as ensuring that dismissal is reasonable in the circumstances, the employer must ensure that a full and proper procedure is carried out as failure to do so is likely to result in the employee being successful in a claim for unfair dismissal against the employer.

Illegality

If the employment contract is prohibited by law or is performed in an illegal manner, the contract of employment between employee and employer may be void and unenforceable. In general, a court or tribunal will not enforce an illegal contract and the employee should not be afforded employment rights under it. This might be applicable where, by way of example, the employee misrepresents the fact they are entitled to work in the UK.

Some other substantial reason

If it can be shown that there is some other significant reason as to why the employment should be terminated then a dismissal may be fairly justified on the grounds of “some other substantial reason”. Such a reason does not often apply and must be evaluated on a case by case basis.

Even in the event that the employer is able to show that the dismissal was for one of the five fair reasons, they must still satisfy an Employment Tribunal that a full and correct procedure had been carried out, in accordance with the Acas Code of Practice. Failure to do so is likely to result in the employee being awarded an uplift to compensation of between 10% and 25%.

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Frequently Asked Questions about Unfair Dismissal

Who is eligible to bring an unfair dismissal claim?

In most cases, employees must have been employed for a period of two years or more to be eligible to bring an unfair dismissal claim. There are however specific exceptions to this rule.

What reasons can an employer use to justify a dismissal?

An employer must show that the dismissal was for one of five permitted fair reasons:

  • Conduct: Dismissal due to the employee’s misconduct, which may include gross misconduct or a series of warnings about their conduct.
  • Redundancy: Arising when an employer closes down its business/part of the business or no longer needs as many employees for a particular kind of work.
  • Capability: Either when an employee is not competent enough or is frequently ill and absent from work or performance related capability.
  • Illegality: If the employment contract is prohibited by law or performed illegally, making it void and unenforceable.
  • Some Other Substantial Reason: A significant reason evaluated on a case-by-case basis that justifies termination.

Employers are required to follow a fair and reasonable procedure when dismissing an employee.

What is classed as Automatic Unfair Dismissal?

Automatic unfair dismissal occurs when an employee is terminated for reasons that are deemed automatically unfair under UK legislation. These reasons include, but are not limited to, being dismissed for whistleblowing, taking maternity leave, asserting a statutory right, participating in trade union activities, or refusing to work in unsafe conditions. Unlike standard unfair dismissal claims, employees do not need a minimum length of service to claim automatic unfair dismissal, offering them immediate protection under the law.

What constitutes unfair dismissal based on conduct?

Unfair dismissal based on conduct occurs if the employer cannot demonstrate that the dismissal was reasonable given the circumstances. This could involve situations where the employer fails to follow proper disciplinary procedures before terminating employment.

How is redundancy handled fairly?

For a redundancy dismissal to be fair:

  • A full and proper procedure must be carried out;
  • Employers must identify appropriate individuals for redundancy and apply fair, objective criteria;
  • Employers must explore suitable alternative employment for affected employees.

In cases of collective redundancy (if you’re making 20 or more employees redundant within any 90-day period at a single establishment (specific information and consultation procedures must be followed.

How does capability affect dismissal?

Dismissal on the grounds of capability can be reasonable if an employee is not competent to perform their job or is absent for long periods due to illness. However, the employer must ensure a full and proper procedure is followed, otherwise, the dismissal may be deemed unfair.

What is meant by dismissal due to illegality?

If the employment contract is illegal or performed in an illegal manner, such as an employee misrepresenting their right to work in the UK, the contract may be void, and the employee might not have employment rights under it.

What does "some other substantial reason" mean?

This is a catch-all category for dismissals that don’t fall under the other four reasons but can be justified for a significant and valid reason. Each case is evaluated individually to determine its fairness.

What happens if an employer doesn't follow correct procedures?

Even if the employer provides a fair reason for dismissal, they must follow a full and correct procedure in accordance with the ACAS Code of Practice. Failure to do so could result in the employee receiving an uplift in compensation of between 10% and 25%.

How can Franklins Solicitors help with unfair dismissal claims?

We provide comprehensive support, including:

  • Assessing your eligibility to bring a claim;
  • Advising on whether your dismissal was for a permissible reason;
  • Ensuring that proper procedures were followed by your employer;
  • Representing you in negotiations, grievance processes, and Employment Tribunal claims

How can I contact Franklins Solicitors for advice on unfair dismissal?

To arrange an appointment to discuss unfair dismissal or any other aspect of employment law, please contact us by calling 01908 660966 or 01604 828282. You can also email us at info@franklins-sols.co.uk or click on the button below to arrange for someone to get in touch.

Contact the Franklins Employment Law team

If you have any questions about employment law, please don’t hesitate to contact our team of experts who are on hand and ready to help you.