Sacked or Fired? How to Claim Unfair Dismissal in the UK

Who Can Claim Unfair Dismissal

You need two years of continuous employment with the same employer to bring an unfair dismissal claim. The qualifying period does not apply to automatically unfair dismissals. Employment begins on the first day of work under the contract.

The Legal Test

The employment tribunal applies a two-stage test. First: did the employer have a potentially fair reason for dismissal? The five potentially fair reasons are capability, conduct, redundancy, statutory restriction, and some other substantial reason. Second: did the employer act reasonably in treating that reason as sufficient justification for dismissal, including by following a fair procedure?

The Range of Reasonable Responses

The tribunal does not ask whether it would have dismissed. It asks whether the dismissal fell within the range of reasonable responses open to a reasonable employer in the same circumstances. This is an employer-friendly test -- the tribunal may think dismissal was harsh yet still find it was fair if a reasonable employer could have chosen it.

Procedural Fairness

Many dismissals are found unfair not because the reason was wrong but because the procedure was defective. The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out minimum standards: investigate properly, notify in writing, hold a disciplinary hearing with the right to be accompanied, give the right of appeal. Unreasonable failure to follow the Code can increase compensation by up to 25 percent.

Automatically Unfair Dismissal

Some dismissals are automatically unfair regardless of how reasonable the employer's procedure was. These include dismissals for pregnancy or maternity, whistleblowing, trade union activities, asserting a statutory right, and requesting flexible working.