I’ve been dismissed: what are my rights?

If you’ve lost your job, your first thought might be “was it fair”? In this article, we’ll help you understand if your dismissal was lawful and explain your rights. We’ll also outline the differences between different types of dismissal: 

• unfair
• summary 
• constructive 
• wrongful 

In law, these are distinct concepts, but sometimes they are misunderstood and/or referenced wrongly. 

Regardless of the circumstances, you have the right to be told why you’re being dismissed. If you’ve worked there for more than 2 years, or if you’re pregnant, on maternity leave or adoption leave, the explanation must be in writing.

Unfair dismissal

As the name suggests, the law of unfair dismissal protects you from a dismissal which is ‘unfair’. 

 What is ‘unfair’?

Your employer is allowed to dismiss you, but only

• for a fair reason and
• in a fair and reasonable way. 

It’s not just what your employer does, it’s also how they do it.

Fair reasons for dismissal

There are 5 potentially fair reasons for you to lose your job. These are:

1. Capability: you’re not capable of doing your job. This might be because your performance doesn’t meet the required standard, or because you are frequently off sick. (Although your employer needs to consider potential disability discrimination if the dismissal is due to sickness absence.)
2. Misconduct: you’ve behaved badly at work.
3. Illegality: your employer cannot, legally, keep you on. The most likely example would be if you have lost the right to work in the UK.
4. Redundancy: your role is no longer needed. You have additional rights during redundancy. Read ACAS guidance on redundancy.
5. ‘Some other Substantial Reason’. For example, a significant conflict of interest or a client refusing to work with you.

An Employment Tribunal will focus on identifying the real reason you have been dismissed. 

Employer’s obligation to act in a reasonable way

Even if your employer does have a fair reason for dismissing you, they must also act reasonably. Reasonableness is a difficult concept to define. A Tribunal would consider whether your employer: 

• genuinely believed their reason was fair
• carried out proper investigations
• followed their own procedures (such as disciplinary, grievance, capability)
• told you that you were being considered for dismissal and listened to your views
• allowed you to be accompanied at any disciplinary/dismissal hearings.

In other words, the specific details of your situation must be taken into consideration. Were you treated in the same way as other employees? Were you given appropriate training, support and encouragement? Did your employer follow a fair procedure to investigate the issues? 

The size and resources of your employer will also be taken into consideration - could you have been redeployed to another department?  

Automatically unfair reasons for dismissal

There are certain circumstances where the reason for dismissal is so obviously unfair that you don’t have to demonstrate that your employer acted unreasonably. These are known as automatically unfair reasons for dismissal. 

It is automatically unfair, to lose your job because you:

• are pregnant or on maternity leave
• made a flexible working request
• asked for your legal rights at work
• complained about a health and safety issue
• work in a shop/betting shop and refused to work on a Sunday
• took part in trade union activities, including industrial action
• have raised whistleblowing concerns.
  

What is whistleblowing?

Whistleblowing is where you raise a concern about wrongdoing that you have seen or experienced, and you reasonably believe that raising the concern is in the public interest. Read our case study on real whistleblowing claims.

If you’ve been at your job for 2 years, it’s also automatically unfair to dismiss you because 

• the business has been taken over by a new company
• you failed to disclose a spent conviction.

Discrimination and unfair dismissal

If you think you’ve lost your job (directly or indirectly) because of a protected characteristic, this could be unfair dismissal. This means anything related to:.

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief 
• sex or
• sexual orientation

You may also be able to raise an additional claim against your employer for unlawful discrimination under the Equality Act 2010. Demonstrating the real reason for your dismissal can be difficult; try to gather and organise as much evidence as possible. 

Learn more about discrimination in the workplace - The 9 protected characteristics.

Summary dismissal and notice periods

When your employment is terminated, you are entitled to a notice period, and you should be paid for that notice period. 

However, if you have committed a very serious act of misconduct (known as gross misconduct), your employer may be entitled to end your employment with immediate effect. This is sometimes called summary dismissal. You will be asked to leave immediately and won’t be paid for the notice period. 

However, even if you’ve committed an act of gross misconduct, your employer must carry out a full investigation of the incident and follow their disciplinary procedure. Otherwise, they may be acting unlawfully.

What is gross misconduct? Read ACAS guidance.

Unfair dismissal: a few more things to consider

If your dismissal was automatically unfair, it doesn’t matter how long you’ve worked there.

To be eligible to make a claim for other kinds of unfair dismissal, you must

• be an employee and
• have worked there for at least 2 years 

If your situation doesn’t resemble unfair dismissal, but you still feel it termination was wrong, it could have been wrongful or constructive dismissal.

What is wrongful dismissal?

Wrongful dismissal is when your employer has breached one of the terms of your contract by dismissing you. For example, if you were dismissed without the notice period stated in your contract or if you lost your job because of your actions at work, but your employer didn’t use the grievance procedure in your contract. 

Unlike unfair dismissal, protection from wrongful dismissal applies from day 1 of employment.

What is constructive dismissal?

Constructive dismissal is when you’re forced to leave your job because of your employer’s behaviour; your employer has left you no option but to resign. 

This could be because: 

• your employer hasn’t paid you
• you’ve been demoted for no good reason
• you’re being harassed at work
• your employer is making unreasonable requests.

It could be one serious incident or a combination of things. 

If you believe you have a case for constructive dismissal, you should seek advice immediately. Resigning is a brave step; you need to be confident in your position. 

Read more about Constructive Dismissal 

I’ve been unlawfully dismissed: what next?

Be it unfair, wrongful or constructive dismissal, if you think you’ve been unlawfully dismissed, and you want to exercise your legal rights, you have a few options to consider.

• Appeal: You can appeal the dismissal through your employer’s appeal process. You may wish to speak to your Union representative. 
• Early Conciliation: If your employer doesn’t have an appeals process, you may be able to get help from ACAS. ACAS can ask your employer if they will agree to a free process called early conciliation, which aims to resolve disputes without going to a Tribunal. Most of the time, if you intend to raise a Tribunal claim, you must contact ACAS before you make a claim anyway.
• Tribunal: If you wish to raise a Tribunal claim, you usually only have 3 months (less one day) from when your employment ends to do so (although this time period can sometimes be extended). You can start the process even if an appeal is ongoing.

What is my goal? 

What do you want to achieve from challenging your dismissal? This can be a difficult question to answer. 

You first thought might just be that you want your job back, and you’re entitled to ask for that (reinstatement). 

You can also ask your employer to give you a suitable alternative job (re-engagement).

However, going back to a place of work where you have been treated unlawfully may not be workable, realistic or appealing to you. This is why you are entitled to ask for an award of compensation rather than reinstatement/re-engagement. 

The amount of compensation you receive will depend upon your:

• age
• weekly pay
• length of service
• actual earnings lost
• potential future earnings lost and 
• future loss of employment rights.

Importantly, you have a duty to reduce your financial loss by making reasonable efforts to find a new job. Otherwise, a Tribunal may reduce the amount of compensation you receive.

We’re here to help you

Losing your job can be a worrying, strenuous time. If you think you’ve been unlawfully dismissed, we can help you navigate the process of challenging your dismissal. 

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