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Factsheet: What is an Unfair Dismissal?

Types of dismissal

A dismissal can occur in three different ways

  1. Your employer terminating the contract with or without notice
  2. The expiry of a fixed term contract
  3. You leave, with or without giving notice, in circumstances in which you are entitled to do so because of your employer’s conduct (known as a constructive dismissal)

Since 2012, employees had to be employed for at least 2 years (the qualifying service period) to be able to claim unfair dismissal under the Employment Rights Act (ERA). This does not mean that an employee with less than 2 years’ service has no potential claims. There is no requirement for qualifying service in certain circumstances. For example, dismissals due to pregnancy or whistleblowing, or to bring a discrimination claim under the Equality Act 2010. However, in these cases, the burden of proof is on the Claimant to show they have been “wronged” whereas for employees with 2 years’ service the burden of proof is on the employer to show the dismissal was fair.

Fair reasons for dismissal

There are five potentially fair reasons for dismissal under the ERA: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction and “some other substantial reason” (SOSR). As well as relying on one of the potential fair reasons, your employer must also satisfy a Tribunal that they acted reasonably in treating that reason as sufficient to justify dismissing you as the employee.

The potential fair reasons encompass a wide variety of situations

  • Capability means the ability of someone in terms of their performance or if they become unfit for work or to do their particular job. A dismissal will relate to an employee’s qualifications if it is connected to any “degree, diploma or other academic, technical or professional qualification” relevant to the employee’s position
  • Conduct may be either a single act of serious misconduct or a series of acts that are less serious
  • Redundancy is defined under the ERA as arising from a business or workplace closure or a reduced requirement for employees to carry out work of a particular kind
  • Statutory restriction. A dismissal is potentially fair if the employee “could not continue to work in the position which he held” without either the employer or the employee contravening “a duty or restriction imposed by or under an enactment.” This includes cases such a potential breach of immigration rules or an employee having a criminal record
  • Some other substantial reason (SOSR) is a catch-all category that covers potentially fair dismissals that would not fall into any of the other categories. In order to show SOSR, it is only necessary to establish a reason for the dismissal, which is of a kind that could justify the dismissal; it is not necessary to show that it actually did justify the dismissal

Was the dismissal reasonable?

In every case, having established a potentially fair reason, a Tribunal will need to decide if the dismissal was reasonable. This essentially involves two considerations

  • Was a proper procedure followed, and if so
  • Was the decision to dismiss outside a band of reasonable responses?

Only if it was beyond what a reasonable employer would have done can a Tribunal conclude that a dismissal was unfair.

Every case is different and whilst every Tribunal should apply the law on dismissals in the same way, it is necessary to look at each case based on its own facts. At Martin Searle Solicitors we are experts in dealing with unfair dismissals and we will be able to advise you whether you have a claim worth pursuing to Tribunal.

Contact us today on 01273 609911, or email

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