Help with unfair dismissal

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If you have been dismissed or are considering dismissing someone its worth having in mind whether that dismissal with give rise to a claim for unfair dismissal. 

The right to claim unfair dismissal only arises once an employee has two years’ service, unless there is an automatically unfair reason for dismissal, in which case there is no minimum period of service before a claim can be brought.

Employers may dismiss an employee fairly provided they do so for one of the following reasons:

·       Conduct;

·       Capability;

·       Redundancy; or

·       Some other substantial reason for dismissal.


A conduct dismissal can arise if there has been a series of acts of misconduct that culminate in dismissal, or if there is a one off act off gross misconduct.

Examples of misconduct could include persistent lateness, minor damage to company property, or failure to report sickness absence. An Employment Tribunal would not expect an employer to dismiss for an act of misconduct unless there have been a series of acts or incidents and the employee has been given warnings before dismissal takes place. Notice pay is payable for this type of dismissal.

Gross misconduct covers more serious acts. Examples could include theft, breaches of health and safety and failure to follow a reasonable management instruction. An employer can dismiss without paying notice pay if gross misconduct is found to have taken place.

An employer will need to show:

·      That they held a genuine belief that the employee had committed the misconduct alleged;

·      That decision is based upon a thorough investigation; and 

·      Dismissal was within the band of reasonable responses open to the employer.

An employer will also need to carry out a fair procedure and ensure that they follow their own disciplinary procedures. 


A dismissal for capability covers dismissals related to performance and also absence.

If there are issues with an employee’s performance or attendance level an employer should discuss the issues with the employee to check if there is an underlying reason for the issues. If there is, it may be that an employer is able to support an employee. If not an employer would need to carry out a capability procedure.

Most employers have capability procedures and if they do they will need to follow these. Generally an employer will need to meet with the employee, set out the issues that require improvement and set a target by which the employee should have improved those issues.  Unrealistic targets should not be set and there should be a realistic period of time for improvement to be made. Training should be considered and provided where appropriate. 

If no improvement is made then a warning could be issued. If it is the employee should be given further time to improve. If there remains no improvement then a final warning may be issued. If there remains no improvement after that then a dismissal could take place.

One issue which employers will need to consider when dealing with capability dismissals is whether there is an underlying medical condition which means that the employee could be disabled in law. If there is, then the employer may need to obtain medical evidence and consider if there are adjustments which need to be made to the job, or if another role is available for the employee as an alternative to dismissal. 


A redundancy situation will generally arise if there is a reduction in the size of a workforce, there is no longer a need for a particular role, or there has been a closure of a business or workplace. It may also arise if a workplace location changes.

A Tribunal will not interfere with the business decisions taken by an employer. They will only consider if it is genuine. If there is not a genuine redundancy situation, i.e. it is a sham, then that would render a dismissal unfair.

If an employer takes a decision to make redundancies they must act reasonably. They should consult with the affected employees and consider if there are ways of avoiding the redundancies. An employer will need to consult for a set period of time if they are dismissing 20 or more employees in a period of 90 days, and the failure to do so can result in a protective award claim.

During consultation the employer will need to consider how they decide who to make redundant. They can make that decision by interviewing employees, or carrying out another form of selection exercise, such as a scoring matrix. An employer will also need to apply their minds to the pooling of employees. The failure to do so could render the dismissal unfair.

Once the selection process has taken place an employee will usually receive confirmation that they are to be made redundant. They should then be given a period of notice and informed of their right to appeal and their redundancy payment entitlement. 

The employer should also consider if there are suitable alternative roles available to offer the employee as an alternative to redundancy. If an employee unreasonably refuses to accept an offer of alternative employment then they may forfeit their right to their redundancy payment. 

Some Other Substantial Reason

This reason is commonly referred to as SOSR. It covers dismissals which fall outside of the other potentially fair reasons outlined above. It is often referred to as the “catch all” reason for dismissal.

Examples of dismissals which could fall under SOSR would include a client of the employer applying pressure to dismiss the employee, changes to terms and conditions, or breakdowns in the relationship between the employer and employee. 

An employer will need to establish that the dismissal was within the band of reasonable responses on the facts and circumstances of the case and follow a fair procedure. 

Automatically unfair reasons

2 years’ service will not be required if a dismissal is found to be on the basis of one of the following reasons:

·      Discrimination under the Equality Act 2010 (namely due to age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex (including pregnancy and maternity) and sexual orientation);

·      Taking part in Jury service or taking leave for family related reasons;

·      Raising health and safety, Working Time Regulation or national minimum wage issues;

·      Making a protected disclosure (known as whistleblowing)

·      Being an employee representative or a trade union representative; or 

·      Asserting certain statutory rights.

Constructive Dismissal 

If an employee resigns due to their treatment by an employer they may be able to claim constructive dismissal. This is a type of unfair dismissal claim.It arises if: 

·      There was a repudiatory breach of contract by the employer;

·      The employee resigned in response to this breach; and

·      The employee didn’t delay too long before resigning.

A breach of contract can be in response to a series of breaches of contract, or to a single fundamental breach. It can be a breach of an express term, but most usually there is a breach of an implied term (often trust and confidence). 

Examples of repudiatory breaches could include reducing an employees salary unilaterally (i.e. without agreement), reducing or changing an employee’s duties, or discriminatory behaviour.

If there is a series of breaches the act which causes the resignation (often referred to as ‘the final straw’) must not be trivial.

If there is a repudiatory breach an employee must choose to affirm the contract or accept the breach. Acceptance of a repudiatory breach, i.e. resignation, must be explicit and unambiguous. If an employee attends work after a repudiatory breach it may be that they are deemed to have accepted the breach, in which case they would not be able to claim constructive dismissal.

Whether a delay infers affirmation of the contract will depend upon the facts of the case. For example, an employee could work under protest and say they are continuing to work to allow an employer to rectify the breach. There are circumstances in which this will not prejudice the employee’s position.

However there are other examples where delay is fatal. For example, if an employee goes off sick following a fundamental breach and then accepts sick pay, there is case law which indicates that this will mean that they wanted the contract to continue. 

If an employee can establish that they have been constructively dismissed they can claim unfair dismissal if they have 2 years’ service. If they do not then they may seek to claim wrongful dismissal, which is in essence a claim for notice pay.

Time Limits

In order to pursue a claim for unfair dismissal an employee would need to start the Tribunal process within 3 months less 1 day of the dismissal. Failing which they would only be able to proceed with a claim if they can persuade a Tribunal it was not reasonably practicable to submit the claim within the 3 month period.

The employee will need to contact ACAS to begin Early Conciliation in order to begin the Tribunal process. This needs to take place before the time limit expires.

If you are an employee who believes that they may have been unfairly dismissed, or an employer requiring advice about any dismissal process, then please contact Olga Aleksandrova by email at or by phone on 020 3955 7798.

Oliver Adderley