When referring to real cases, we use aliases.
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:
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.
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
It’s not just what your employer does, it’s also how they do it.
There are 5 potentially fair reasons for you to lose your job. These are:
An Employment Tribunal will focus on identifying the real reason you have been dismissed.
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:
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?
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:
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.
If you’ve been at your job for 2 years, it’s also automatically unfair to dismiss you because
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:.
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.
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.
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
If your situation doesn’t resemble unfair dismissal, but you still feel it termination was wrong, it could have been wrongful or constructive 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.
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:
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.
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.
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:
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.
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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