Unfair Dismissal

What is a dismissal?

Employees have the right not to be dismissed unfairly. If you believe you have been dismissed unfairly, an Employment Tribunal will determine the main reason for your dismissal and decide whether it was fair or unfair.

A dismissal takes place when:

• the employment contract is terminated with or without notice
• a fixed-term contract is not renewed
• an employee leaves and claims constructive dismissal
• a redundancy takes place
• a woman is not allowed to return to work after maternity leave
• there is a refusal to re-employ after a take-over of the business
• the employer claims the employee has dismissed themselves through their actions or behaviour

You should also read the section below on Statutory Disciplinary and Grievance Procedures.

Fair dismissals

The employer can fairly dismiss a worker if the dismissal is to do with:

• capability to do the job, including skill, aptitude, health or any other physical or mental quality. However the employer will normally be expected to show that they could not be aware of the lack of capability upon engagement and that warnings were given and the expected standard required was made clear to the worker.
• conduct, normally gross industrial misconduct will result in a fair and automatic dismissal. Other instances of misconduct should be dealt with by disciplinary procedures.
• redundancy - see section on redundancy
• failure by the employee to comply with legislation, such as the Health and Safety at Work Act
• some other substantial reason, such as the economic necessity of the business or any reason which the employer believes to be substantial

Unfair dismissal

A dismissal is unfair if it does not fall into the above categories click here for details, and some dismissals are automatically unfair, these are where the main reason for the dismissal is:

• pregnancy
• membership (or non-membership) of a trade union
• asserting a statutory right, such as the right to paid holidays
• raising health and safety concerns
• acting as a pension trustee
• acting as an employee representative, including as a shop steward or safety rep
• following a take-over of the company by a new employer covered by the Transfer of Undertakings (Protection of Employment) Regulations
• on the grounds of racial or sexual discrimination

To present a case of unfair dismissal to an Employment Tribunal you must normally submit the claim within three months of the dismissal. With the exception of cases which are automatically unfair (see above), you must have at least one year’s continuous employment with the employer.

A tribunal which finds that a dismissal was unfair can order re-engagement or make a compensatory award up to a current limit of £56,800 unless the dismissal is based on discrimination where there is no overall maximum.

You should also read the section below on Statutory Disciplinary and Grievance Procedures.

Wrongful dismissal

A worker not covered by the protection against unfair dismissal may be able to claim wrongful dismissal when the action of the employer amounts to a breach of the contract of employment. For example, if you are sacked without proper notice you can claim wrongful dismissal irrespective of your length of service with the employer. You should contact your UCATT regional office as soon as a dismissal occurs if you believe it was unfair. You should also read the section below on Statutory Disciplinary and Grievance Procedures.

There are very strict time limits for submitting applications to an employment tribunal. The deadline for most applications is 3 months from the incident complained about, except in redundancy cases or in equal pay claims when it is 6 months.

Check the disciplinary and grievance section for more information on time limits.

For more information contact your regional office , quoting your UCATT membership number.