Dismissal from work

Under the Employment Rights Act 1996, your employer can dismiss you fairly if:

• Your conduct at work is inappropriate or unacceptable (known as conduct)
• You are not able to your job or don’t have the right qualifications to do your job (known as capability)
• You are made redundant (known as redundancy)
• Illegality- where your continued employment would result in a breach of a legal provision or rule
• ‘Some other substantial reason’ – a term used for a wide variety of other reasons for dismissal. See ‘reasons for dismissal’ for more information.

Only employers have the legal power to dismiss an employee.

If your employer has dismissed you, they must:

• Carry out a reasonable investigation before considering dismissal.
• Act fairly during the dismissal process. (If they dismiss you for something other employees do, you may be able to claim unfair dismissal).
• Show they have a valid and justified reason for dismissal.
• Consider alternative employment or available vacancies if dismissal is for other than conduct.
• Act reasonably given the circumstances.

Where an employee has been continuously employed for not less than two years, they are legally entitled to request the employer provides written reasons for the dismissal (this should be provided within 14 days of the request).

A woman who is pregnant or on maternity leave is automatically entitled to written reasons for dismissal regardless of their length of service.

Failure to provide written reasons of dismissal can be used as evidence in an employment tribunal.

No. Your employer must have both a valid reason for dismissal, as well as show that they have acted reasonably given the circumstances of your dismissal e.g., if you are being dismissed because of a capability reason, your employer must prove that you are not qualified to do your job, as well as show that they offered training and support to overcome that capability issue.

Under the Employment Rights Act 1996, you can be dismissed fairly for the following reasons:

Conduct

When you have done something that is deemed inappropriate or unacceptable or in breach of the rules and procedures that apply to you.

Capability

When you are unable to your job, or don’t have the right qualifications to undertake the work you do.

Legal reasons

When you are unable to your job due to a legal reason e.g., you have lost your driving license and you work as a driver.

Redundancy

Redundancy is when your job or role is no longer needed. If you are made redundant, your employer must follow a fair redundancy process. Click here to read more on your rights when being made redundant and how we can help you through redundancy.

Some other substantial reason

This term is used for a variety of reasons for dismissal. Examples of substantial reasons for dismissal include:

• A fixed-term contract of employment ending.
• Refusal to agree to new terms and conditions of employment.
• Third party pressure from a client.
• Reputational damage
• Restructuring and reorganising

If none of the above reasons apply to a dismissal, it may be considered unfair.

Employers can dismiss an employee for sickness – however, they must follow appropriate procedures or they may be liable under unfair dismissal. You can also be dismissed if you have a persistent or long-term illness that makes it impossible for you to do your job (a capability issue).

However, dismissing an employee for being off on sick leave should be a last resort, and employers should first consider how they can support you, if the work you’re doing is making you sick and give you reasonable time to recover from your illness.

If you have a disability or a long-term health condition, your employer should first consider making reasonable adjustments in the workplace to accommodate your illness or disability.

If your employer dismisses you because of a disability, they could liable under disability discrimination.

Typically, when dismissing an employee, employers should give a notice period of when their employment will end.

Employers can dismiss employees without giving notice if the reason for their dismissal is gross misconduct (they must, however, still follow a fair procedure). If you are dismissed for gross misconduct, you must leave immediately, and aren’t entitled to notice pay. However, you are still entitled to pay for work you haven’t been paid for yet or expenses, any accrued and annual leave.

Save for gross misconduct, if an employee is dismissed with incorrect notice, no notice or without the company procedure being properly followed (if they have a procedure), this is a wrongful dismissal and the employee will be able to claim for pay in lieu of notice if there is provision in the contract, or for breach of contract.

While employers don’t legally have to provide employees with a warning before dismissal, it is vital to give employees to fix any issues surrounding conduct, capability, or redundancy issues.

Employers typically won’t provide a warning for dismissal for legal reasons or gross misconduct.

Unfair dismissal is where an employee is dismissed without fair reason, or unrelated to the 5 types of dismissal listed under the Employment Rights Act 1996.

Unfair dismissal can also be claimed by an employee if an employer has a fair reason, but the dismissal process wasn’t followed properly.

Ordinary unfair dismissal

To claim “ordinary” unfair dismissal at an employment tribunal, an employee must satisfy the following:

• That they have been dismissed.
• They were an employee employed under a contract of employment.
• They had been continuously employed for at least 2 years at the date of termination.

If you have worked for your employer for 2 or less years, you cannot claim ordinary unfair dismissal, but may be able to claim under automatic unfair dismissal, or wrongful dismissal. See short service dismissal below for more information.

Automatic unfair dismissal

Automatic unfair dismissal is where an employee is dismissed for a reason that is so inherently unfair and violates basic employment rights, that no minimum length of service is required for the employee. Examples of automatic unfair dismissal can include:

• Being pregnant.
• Being a member of a trade union (us!).
• Being a trade union representative.
• Being on maternity, paternity, or adoption leave.
• Forced retirement.
• Going on jury service.
• Making a flexible working request.
• Acting over a health and safety hazard.
• Taking part in legal industrial action.
• Taking parental leave.
• Whistleblowing.
• Trying to enforce a legal right you have such as rest breaks or holidays, health and safety or other statutory rights.

It is also automatically unfair to dismiss someone for a reason related to a transfer of undertakings (TUPE).

If you believe the reason for your dismissal was unfair, you may be able to make a claim to an employment tribunal under grounds of unfair dismissal. You should inform Community immediately if you intend to do this as our legal team may be able to provide advice and support you through this process.

Wrongful dismissal is where an employee is dismissed for a reason that breaches their contract of employment – typically, wrongful dismissals relate to notice periods or pay.

No minimum length of service is required for an employee to claim wrongful dismissal.

Short service dismissal is where an employee is dismissed and has less than 2 years length of service. Employers can lawfully dismiss any employees who haven’t accrued statutory protection against unfair dismissal without having to defend their decision.

Constructive dismissal is where an employee is forced to leave their job against their will because of their employer’s conduct (or breach of employment contract) such as:

• Regularly not being paid.
• Being bullied or discriminated against.
• Raising a grievance that has been ignored.
• Unreasonable changes to working patterns without agreement.

Constructive dismissal can be difficult to prove at an employment tribunal. We would first recommend speaking to your employer about the issues you are experiencing to see if they can resolve informally. If this doesn’t work, contact us immediately for support as you may be able to raise a grievance.

Like ordinary unfair dismissal, you must have workers for your employer for 2 or more years to make a constructive dismissal claim.

The time limit for making a claim to the employment tribunal for either unfair dismissal, automatic unfair dismissal and constructive dismissal is three months minus a day and runs from the date of the dismissal and not the conclusion of any appeal process. It is vital that a member’s right to bring a claim is preserved.

You should notify Community or your Community Rep at the earliest opportunity of any potential claim. Your claim will then be assessed by our legal team to ensure that they have a reasonable prospect of success.

We’re sorry to hear that you have been dismissed – however it is important that you consider what your next steps are now that you’re out of work. You should consider:

• Finding new employment as soon as possible. If you need help or advice with finding a new job, writing your CV or upskilling, contact our Community Learn team.
• If you believe your dismissal was genuinely unfair, contact Community immediately for support.
• Let us know you’re unemployed and we’ll reduce your subscription rate while you’re looking for employment.
• Check out our member-exclusive financial benefits to see how we can support you financially while you’re out of work.
• If you are struggling with mental health or stress, click here to access our mental health resources and find support.