Dismissal - the law

Basic legal rules

• Employees dismissed unfairly can go to a tribunal if they have been working for at least two years. Some specific types of dismissal do not require service. The deadline for bringing a claim for unfair dismissal is three months less one day from the dismissal date. This deadline is rarely extended. 


• All claims must be submitted to Acas for early conciliation before being issued in the employment tribunal. This important step must be taken inside the three-month deadline for bringing an unfair dismissal claim. No claim can be issued in the employment tribunal without an Acas Early Conciliation Certificate. As long as it is a properly formulated claim, the conciliation process extends the deadline for issuing a claim. Legal advice should be sought on limitation periods to ensure deadlines are met. For more information about Acas early conciliation go to the Acas website.


• Applications for interim relief (available, for example, where a dismissal is for union-related reasons) are exempt from the Acas early conciliation process. These must be made very quickly indeed — within seven days of the incident complained of.


• Unfair dismissal law identifies five categories of “fair” reason for dismissal: conduct, capability, redundancy, contravention of a legal requirement (for example, immigration status) and “some other substantial reason”. A reason falling outside these categories cannot be fair.


• As well as being for a “fair reason”, a dismissal must be carried out using a fair procedure. For example, employees must be given enough information and time to prepare their response and the opportunity to explain their version of events. Employees should be pre-warned of the risk of dismissal, told of their right to be accompanied and offered an appeal.


• Some reasons (for example, dismissals for asserting a statutory right, such as the right to take parental leave) are “automatically unfair”. 


• There are various types of dismissal, including termination by the employer, expiry of a fixed-term contract and “constructive” dismissal (where an employee resigns in response to a fundamental breach by the employer of the employment contract). Resignation should always be a last resort. In particular, it may be very difficult to prove the resignation was because of the employer’s actions. 


• A tribunal can award reinstatement or compensation for unfair dismissal based on the net lost earnings resulting from the dismissal. From 6 April 2020, the compensatory award is capped at £88,519 or 52 weeks’ wages if less. In practice, few employees receive anywhere near this amount.


• A tribunal can reduce compensation, for example where the employee’s behaviour contributed to the dismissal, where an employer shows that the employee would have been dismissed in any event, or where an employee fails to take reasonable steps to reduce losses by, for example, looking for another job.


• It is no longer necessary to pay fees in order to pursue an Employment Tribunal claim or an appeal in the Employment Appeal Tribunal. Tribunal fees were abolished by the Supreme Court in July 2017 in a landmark case brought by the public services union UNISON.


• The government has introduced an tribunal fees refund scheme to refund anybody who paid tribunal fees. Details of how to claim are available at: www.gov.uk/employment-tribunals/refund-tribunal-fees

• Tribunal claims can be issued online or by post. Details at: www.gov.uk/employment-tribunals/make-a-claim.

Key developments 


•  The motivation of a manager involved in a disciplinary investigation can be taken into account when working out the employer’s reason for dismissal, in this case, lawful trade union activities (case 1). 


•  It is not always unfair to dismiss without a separate investigation meeting (case 2).


•  In a gross misconduct dismissal for bringing the employer into disrepute through sexual misconduct, an investigator’s failure to tell the manager hearing the disciplinary that the complainant had withdrawn a complaint to the police made the dismissal unfair (case 3).