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Under Section 94 of the Employment Rights Act 1996, employees have the right not to be unfairly dismissed. This area of law can be complex and costly for businesses, which is why it’s crucial to follow fair, lawful dismissal procedures and seek expert legal advice at an early stage.
At Franklins Solicitors, we support employers through every step of the dismissal process, from risk assessment and internal procedures to tribunal defence, helping reduce the likelihood of costly claims.
At the time of writing, in most cases, an employee must have completed at least two years of continuous service to be eligible to bring a claim for unfair dismissal. However, there are exceptions, including dismissals related to whistleblowing, discrimination, health and safety, or exercising statutory rights, in which case no qualifying service period is required.
However, the new Employment Rights Bill introduces key changes, including making unfair dismissal a “day one” right and implementing a statutory probationary period (IPE) for simplified dismissals, with expected implementation by Autumn 2026.
Employers must show that a dismissal was for a fair reason and that a reasonable and lawful procedure was followed. The five potentially fair reasons for dismissal are:
If an employee’s behaviour breaches company policy or is deemed unacceptable, dismissal may be justified on conduct grounds. This could include:
Even in serious cases, a fair disciplinary procedure must still be followed to reduce the risk of a successful claim.
Redundancy occurs when a role is no longer required, often due to business restructure, closure, or reduced staffing needs. To fairly dismiss on the basis of redundancy, employers must:
Failing to follow these steps can render the redundancy unfair.
An employee may be fairly dismissed due to poor performance or ill health that affects their ability to do the job. Employers must demonstrate:
If continuing employment would be unlawful, for example, due to visa issues or legal restrictions, dismissal may be justified. This includes situations where:
Employers must still assess and document the circumstances thoroughly.
This is a broad category for unusual but significant reasons for dismissal, such as:
Each case must be assessed individually to determine whether dismissal is fair.
Even with a valid reason, dismissal may still be deemed unfair if a proper procedure is not followed. Employers must act consistently with the Acas Code of Practice on Disciplinary and Grievance Procedures. Failure to follow the Code can result in:
We provide commercial, employer-focused advice on:
Our employment law team combines technical expertise with a practical understanding of business needs.
Generally, an employee who has completed the applicable qualifying period of service has the right not to be unfairly dismissed i.e. where an employer terminates an employee’s contract without a fair reason to do so. For these purposes, the employee must have been dismissed in one of three ways: termination by the employer, expiry of a limited-term contract or constructive dismissal.
If an employee believes they’ve been unfairly dismissed, they can take their case to an employment tribunal. The tribunal will consider the reason for dismissal, whether the employer acted reasonably, and assess whether proper procedures were followed.
Employers can minimise the risk of unfair dismissal claims by having clear policies, providing adequate training, following correct disciplinary procedures, and ensuring that dismissals are based on fair and justifiable grounds.
Employees who believe their dismissal was unfair can initially raise the issue with their employer. If not resolved, they may make a claim to an employment tribunal. Subject to the rules on the automatic extension of time for early conciliation a claim for unfair dismissal must be presented within a period of three months starting with the effective date of termination (EDT).
Fair reasons for dismissal can include employee misconduct, redundancy, incapability due to ill health or lack of qualifications, illegality, or ‘some other substantial reason’.
If a business is found guilty of unfair dismissal, they may have to reinstate the employee, re-engage them in a different job, or pay compensation.
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.
