Dismissal

Key points

• A dismissal occurs when an employer terminates an employee's contract.
• A dismissal should be a last resort for a valid reason.
• Employers must use a fair and consistent procedure/policy when deciding whether to dismiss someone. The ACAS Code of Practice on Discipline and Grievance sets out the principles employers should follow.
• Employees have the right not to be unfairly dismissed. If they have been, they may be able to make a complaint to an employment tribunal. 
• An employer's actions will be taken into account if an employee claims for unfair dismissal and the case reaches an employment tribunal or industrial tribunal if in Northern Ireland.

Types of dismissal include:

• fair dismissal 
• unfair dismissal
• wrongful dismissal
• constructive dismissal
• summary dismissal (for example, without notice)
• automatically unfair dismissal.  

Unfair dismissal

Unfair dismissal is the legal expression used when a contract is terminated without good reason and/or your employer has failed to follow a fair procedure.

To avoid or defend an unfair dismissal claim, your employer will have to show that the reason for dismissal is a potentially fair, such as:

• lack of capability
• misconduct
• redundancy
• breach of a legal requirement
• 'some other substantial reason'.

In addition, the employment tribunal (industrial tribunal in Northern Ireland) will have to be satisfied that your employer acted reasonably in relying on that reason for dismissal.

Please see information about the length of time you need to have worked for your employer and the time limits to make a claim below.

Automatically unfair dismissal

Some reasons for dismissal are automatically unfair and there is no requirement for the employee to have worked for their employer for a certain length of time. Examples include:

• raising health and safety concerns
• pregnancy or maternity leave
• asserting a legal right at work
• dismissals relating to union membership or non-membership
• whistleblowing
• certain redundancy dismissals relating to trade union membership or activities.

There are circumstances in which employees may, following termination of their employment contract, be able to make other types of legal claim to a tribunal regardless of the length of time they have worked for their employer, such as in cases of unlawful discrimination.

Wrongful dismissal

Wrongful dismissal arises when your employer either terminates your contract without appropriate contractual or statutory notice, or breaches a fundamental term in your employment contract which forces you to leave without notice. Dismissal (termination of the contract) can be both wrongful and unfair. For wrongful dismissal, there is no minimum length of time for you to have worked for your employer to make an employment tribunal or civil law claim for your salary in lieu of your notice entitlement.

Please see information about time limits below.

Constructive dismissal

This is when you resign from your job because of your employer’s behaviour/breach of your contract. You would need to show that:

• there has been a serious breach of contract by the employer, and
• you felt that you had no alternative but to leave because of that breach.

There must be a serious and fundamental breach of your contract and examples include:

• sudden demotion for no good reason
• changes to your conditions of employment without your agreement such as relocation without notice, or making you work night shifts when your contract states only day work
• unpaid wages
• bullying, harassment or violence against you by work colleagues where your employer has failed to address the issues or take appropriate action
• not undertaking risk assessments and making you work in dangerous conditions.

The breach could be a one-off significant incident, or a series of minor incidents which, together, amount to a fundamental breach of contract.

Contact us for advice before resigning in these circumstances.

Please also see information about time limits below.

Summary dismissal

Employers have a right to dismiss without warning for gross misconduct, without notice or notice pay.

Gross misconduct is behaviour that is so serious it amounts to a breach of the employment contract.

There must always be a proper investigation, and a fair procedure must always be followed.

If an employer regards a specific kind of behaviour as gross misconduct, they should bring this to the employees’ attention and the behaviour should be set out very clearly in their disciplinary process. Examples of conduct capable of being gross misconduct include:

• theft or fraud
• bullying or unlawful discrimination/harassment
• deliberately accessing internet sites containing offensive or obscene material
• bringing the organisation into disrepute
• serious breach of confidence.

Tribunal time limits are affected by the ACAS early conciliation scheme.

Before lodging an employment tribunal claim, all claimants will need to notify ACAS and conciliation will be offered. If conciliation is unsuccessful, the claimant can proceed to lodge a tribunal claim. The length of the conciliation period will have an impact on the deadline for presenting an employment tribunal claim. For further advice, please contact us. 

Please see the ACAS guidance on early conciliation and our advice guide on employment tribunals. For Northern Ireland, read the Labour Relations Agency's advice on pre-claim conciliation.

A person who believes they have been unfairly dismissed will only be able to bring a claim to an employment tribunal if they satisfy certain criteria. They must:

• have employee status, rather than self-employed or worker status
• have been dismissed
• bring the claim within three months of dismissal (see below)
• not fall within one of the classes of employee who are excluded from the right to claim unfair dismissal (such as police officers and members of the armed forces, for example)
• have worked for their employer for the applicable qualifying period (see below).

In most cases, a claim to an employment tribunal must be received by the tribunal within three calendar months less one day of the date on which your employment is terminated.

For example, if your effective date of termination was 19 March 2023, then your unfair dismissal claim must be received by the employment tribunal no later than 18 June 2023. If this date is a Saturday or Sunday or Bank Holiday then the claim must be received by the Friday or the working day before the Bank Holiday.

Qualifying periods of employment

In general, to lodge a claim in England, Wales or Scotland you should have worked for your employer  for two years. In Northern Ireland, you must have had one year’s length of employment with your employer.

However, claims for wrongful and automatic unfair dismissal have no minimum length of time that you need to have worked for lodging a employment tribunal claim. Your rights are applicable from day one of employment. Please see above for more information on automatically unfair dismissal.

For wrongful dismissal, there is also the right to bring a claim for breach of contract in the civil court.

You are entitled to written reasons for your dismissal provided you have worked for your employer for the time periods set out above. If your employer unreasonably refuses to give written reasons, then you may bring a claim to an employment tribunal (or industrial tribunal in Northern Ireland) within three months of the effective date of the termination of your employment.

If you have been dismissed from your job, please contact us for further advice. It is important to obtain advice promptly as there are strict time limits for lodging claims with an employment tribunal (industrial tribunal in Northern Ireland).

Identifying the actual date of termination for the purposes of an unfair dismissal claim is not always easy, so seek advice as soon as possible.