Written by Emily Sullivan, Solicitor
Losing your job is never easy, and sometimes it can feel as though there has been some wrongdoing on the part of your employer. This guide will look at what needs to have happened for your dismissal to be considered unfair dismissal.
Key Takeaways
- Unfair dismissal occurs when an employer dismisses an employee without a fair reason or without following a fair process.
- To bring a claim, you usually need to meet certain eligibility requirements, including having two years’ continuous service.
- Compensation, reinstatement, or re-engagement may be available if an unfair dismissal claim is successful.
What Is the Legal Background of Unfair Dismissal?
Under section 94 of the Employment Rights Act 1996, employees have the right not to be unfairly dismissed by their employer.
What Should Happen When You Are Being Dismissed?
Fair reasons for dismissal include conduct, capability, redundancy, statutory restriction (i.e. you legally cannot continue to work in the role), or some other substantial reason.
If you sadly lose your job, even if it is due to one of the above “fair reasons”, your employer should have followed a fair process in reaching that decision.
If there has been potential wrongdoing, they may have followed their own disciplinary policy, which should involve an investigation, warnings, and in some situations, dismissal. If an employer does not have their own policies, they should always follow Acas guidance and policy on the matter. Failure to do so can result in a 25% uplift on any award given to the employee in a successful claim.
In the case of redundancy, your employer should still follow a fair process including consulting with employees and following a fair selection criteria.
If you have been dismissed and you do not believe that there was any investigation or process, then you may have a claim for unfair dismissal.
What Do I Need to Prove to Make a Claim?
Whilst it may feel unfair that you have lost your role, not every dismissal is unfair. However, if you consider your dismissal was unfair and you would like to bring a claim for unfair dismissal at an Employment Tribunal, then you must meet the following requirements:
- Must have been employed;
- Must have been dismissed; and
- Must have been within continuous employment for at least two years preceding the effective date of termination.
There are some types of dismissals where the requirement to have two years’ continuous service is not required, such as dismissals due to discrimination on the grounds of a protected characteristic or due to an employee making a whistleblowing disclosure. (The two-year continuous service requirement is set to change to six months in January 2027. If you require further information, please get in touch.)
It will then be for your employer to satisfy the Tribunal with what the reason was and that it was a potentially fair reason.
The Tribunal will then assess the reason behind the dismissal. There may be several fair reasons for dismissal, such as performance, but the procedural element behind it may lead to such a reason being deemed unfair.
How Do I Make a Claim?
Depending on the circumstances, it is often best to first try and reach out to your former employer in writing or via Acas Early Conciliation to outline the situation and put forward an offer to settle.
If you can negotiate a settlement with your employer, the agreed terms should then be set out in a Settlement Agreement for yourself and your employer to sign, allowing you both to move forward as amicably as possible. Employees are required to obtain independent legal advice in respect of the terms of a Settlement Agreement as the Agreement is not binding without this advice.
If a settlement cannot be reached, you may need to make a claim to the Employment Tribunal. A claim must be brought within 3 months minus 1 day after the effective termination date.
Our dedicated team can advise on, and draft settlement offers as well as providing support through any Tribunal claim.
What Could I Be Awarded by an Employment Tribunal for an Unfair Dismissal Claim?
- Compensation – this can be made up of a basic award (statutory redundancy payment) and a compensatory award for financial losses suffered as a result of the unfair dismissal. There is a cap on the level of compensation that can be awarded at an Employment Tribunal, with the highest award being 52 weeks’ salary or £123,543, whichever is lower. Current plans are for this cap to be removed in January 2027, and we will provide more information in due course.
- Reinstatement – employers can be ordered to give the employee their previous job back and to make good the loss of earnings that would have been received from the date of dismissal to the date of the Court-ordered reinstatement.
- Re-engagement – employers can be ordered to give the employee a role that is comparable to their previous job back and to make good the loss of earnings that would have been obtained from the date of dismissal to the date of the Court-ordered re-engagement.
Whether you want to talk through your situation and have a solicitor review your papers, or you are ready to make a claim to the Tribunal, our knowledgeable and experienced employment solicitors in Surrey can guide and support you through. Please get in touch today with Howell Jones, Surrey solicitors, for further information.
