Unfair dismissal Definition

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GLOSSARY

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What does Unfair dismissal mean?

The concept that an employer has not dismissed the employee for a potentially fair reason or under a fair procedure and as such the dismissal was unfair.

An employee has a statutory right not to be unfairly dismissed by reason of s. 94 of the Employment Rights Act 1996. An employer will only have dismissed an employee fairly if it establishes one of the six potentially fair reasons for dismissal and has acted fairly in relying upon that reason for dismissal. S. 98 of the Employment Rights Act 1996 sets out the test of fairness and specifies the six potentially fair reasons for dismissal: Capability or qualifications; Conduct; Retirement; Redundancy; to prevent a contravention of an Act; or some other substantial reason.

Employment

The concept that an employer has not dismissed the employee for a potentially fair reason or under a fair procedure and as such the dismissal was unfair.

An employee has a statutory right not to be unfairly dismissed by reason of s. 94 of the Employment Rights Act 1996. An employer will only have dismissed

View the related checklists about Unfair dismissal

Ireland—Time limits for presenting Workplace Relations Commission claims—checklist

Ireland—Time limits for presenting Workplace Relations Commission claims—checklist This Checklist outlines the key timeliness for practitioners to be aware of in respect of presenting claims to the Workplace Relations Commission (WRC). For detailed guidance on making a claim in the WRC, see Practice Note: Ireland—Making a complaint to the Workplace Relations Commission (WRC). Employment related claims The following complaints arising under the Employment Equality Acts 1998–2015 (Ireland) (EEA 1998 (IRL)) or Pensions Acts 1990–2015 (Ireland) (PA 1990 (IRL)) must be submitted by completing the online complaints form available on the WRC website. See the WRC website for further information on employment related claims. Type of claim Time limit Employment related claims Six months from date of alleged discrimination or if there is more than one alleged incident of discrimination, the relevant date is that of the latest incident.Requests for extension to 12 months for discrimination claims can be made to the Director General of the WRC in exceptional circumstances. Equal pay claims Six yearsThere is no time limit for...

Checklist—changing terms and conditions of employment

Checklist—changing terms and conditions of employment This checklist is aimed at employment lawyers and considers the steps an employer will typically take when seeking to effect changes to terms and conditions of employment that are not permitted by employees' existing contracts. For information generally on the legal and practical issues to consider in relation to effecting changes to employment contracts, see Practice Note: Changing terms and conditions of employment. This checklist reflects the Statutory Code of Practice on dismissal and re-engagement (Code) that came into force from 18 July 2024. For more information on the Code, see Practice Note: Changing terms and conditions of employment—Statutory Code of Practice on ‘fire and re-hire’. While the process may be shortened by warning of the prospect of dismissal and re-engagement at the outset, the Code highlights that an employer should not raise the prospect of dismissal unreasonably early, as this can be detrimental to attempts to reach an agreed outcome. It also states that: • threat of dismissal should not be used as...

Definition of dismissal in unfair dismissal

To succeed in a claim of unfair dismissal, the claimant must establish that they were dismissed by the employer. A contract of employment may terminate in a number of different ways (see Practice Note: Distinguishing dismissal from other forms of termination). However, the circumstances in which an employee is treated as having been dismissed for the purposes of an unfair dismissal claim are set out in section 95 of the Employment Rights Act 1996 (ERA 1996) and limited to:•where the employee's contract of employment is terminated by the employer, whether with or without notice•where the employer gives notice to terminate the contract and, within the notice period, the employee gives counter-notice that expires before the end of the original notice period•where the contract of employment is a limited-term contract (eg a fixed-term contract) and terminates on the happening of the limiting event without being renewed under the same contract•where the employee terminates the contract by resigning, whether with or without notice, in circumstances where they are entitled to do so...

Entitlement to claim unfair dismissal

The right not to be unfairly dismissed is a purely statutory right arising under section 94 of the Employment Rights Act 1996 (ERA 1996). There are a number of qualifying conditions and exceptions. The burden of proving that the relevant qualifying conditions are met generally falls on the claimant.An unfair dismissal claim is within the exclusive jurisdiction of the employment tribunal (ie it cannot be brought in the courts) and must generally be made within three months of the effective date of termination (see Practice Note: Effective date of termination). This time limit:•will be extended if the prospective claimant is subject to the requirement for early conciliation (see Practice Note: The early conciliation requirement—Extension to time limits (the ‘stop the clock’ provisions))•may be extended by the tribunal where it was not reasonably practicable to present the claim in time (see Practice Note: Time limits for presenting employment tribunal claims—Extending time because 'not reasonably practicable').EligibilityThe right not to be unfairly dismissed is only available to employees, defined as individuals who have...

Discover our 373 Practice Notes on Unfair dismissal

Draft letter to employer client on conducting a performance and capability procedure

Draft letter to employer client on conducting a performance and capability procedure Note: this letter is drafted in general terms without a specific situation in mind. You will need to tailor the letter if advising about a specific employee on particular facts. If the employer has its own performance and capability procedure (or disciplinary procedure covering poor performance) you will need to cross-refer to it throughout the letter, in relation to each stage of the procedure and in relation to any time limits set out in the procedure. You may find that the employer’s own procedure provides for more warnings to be given or other steps to be taken. It is assumed in this letter that the review periods for performance will be shorter than the length of any warnings given. [name and address of client] Dear [name] Performance and capability procedure I am writing to set out my advice on how to conduct a performance and capability procedure for an under-performing employee. The main legal risk...

Costs warning letter (employment tribunal)

Costs warning letter (employment tribunal) [ON YOUR LETTERHEAD] [Name and address of other party, or other party’s solicitor] Dear [insert contact name] [Insert subject of letter, eg names of parties to the claim, or Your client: [name]]: Employment tribunal claim number: [insert number] [ [We refer to our previous correspondence in relation to these proceedings, OR We refer to the ET3 response form which our client has submitted to the employment tribunal in response to your [client’s ]claim,] in which we have [set out brief details of the party’s position, eg set out that the employment tribunal has no jurisdiction to hear your unfair dismissal claim because you do not have the required period of continuous employment with [enter name]]] We write to put you on notice that, if [you continue OR your client continues] to pursue [the OR their] [claim[s] for OR ground[s] of defence that] [insert brief details, eg unfair dismissal, the claim is out of time], our client will...

Dive into our 92 Precedents related to Unfair dismissal

Where a worker’s pay is not in compliance with National Minimum Wage (NMW) rates, can the worker bring a claim in the employment tribunal and also make a complaint to HMRC for enforcement proceedings against their employer? If the worker’s claim involves a cause of action in addition to their claim for statutory underpayment of wages, would they be able to pursue the claim for underpayment separately via HMRC enforcement, and proceed just with their employment tribunal claim in respect of the other, non-NMW-related, claim(s)?

Where a worker’s pay is not in compliance with National Minimum Wage (NMW) rates, can the worker bring a claim in the employment tribunal and also make a complaint to HMRC for enforcement proceedings against their employer? If the worker’s claim involves a cause of action in addition to their claim for statutory underpayment of wages, would they be able to pursue the claim for underpayment separately via HMRC enforcement, and proceed just with their employment tribunal claim in respect of the other, non-NMW-related, claim(s)? If a worker has not been paid the national minimum wage: • the worker can enforce their entitlement by way of their contract by making a claim for breach of contract or a claim for unlawful deduction from wages • HM Revenue and Customs (HMRC) can enforce the worker's entitlement by issuing a notice of underpayment or suing on the worker's behalf For further information, see Practice Note: National minimum wage, in particular the main sections dealing with Consequences of failure to pay and Enforcement...

If a lorry driver delivering goods is persuaded not to cross a picket line by employees engaged in lawful, peaceful picketing, and the lorry driver faces disciplinary sanction or dismissal from their own employer (who is not a party to the trade dispute) for refusing to cross the picket line to deliver the goods, are there any protections available to the lorry driver?

If a lorry driver delivering goods is persuaded not to cross a picket line by employees engaged in lawful, peaceful picketing, and the lorry driver faces disciplinary sanction or dismissal from their own employer (who is not a party to the trade dispute) for refusing to cross the picket line to deliver the goods, are there any protections available to the lorry driver? When it comes to statutory protections available to those engaged in industrial action or picketing: • statutory immunity is provided against liability in relation to economic or industrial torts for those involved in industrial action with their employer, which is done in contemplation or furtherance of a trade dispute (as defined), and which complies with specific balloting and notification conditions (see Practice Notes: The right to take industrial action and Balloting for and employer notification of industrial action) • protection against dismissal is potentially available for those participating in such industrial action (see Practice Note: Entitlement to claim unfair dismissal, particular the main section dealing...

See the 252 Q&As about Unfair dismissal

Employment Law—looking back at 2024 and ahead to 2025

Employment analysis: The Lexis+® Employment team have put together a round-up of the key employment law developments in 2024 as well as a look ahead to the key things to look out for in 2025, including upcoming developments on the Employment Rights Bill, the new employer duty to prevent sexual harassment, the Equality (Race and Disability) Bill and upcoming legislation and cases of interest.

Employment weekly highlights—12 December 2024

This edition of Employment weekly highlights includes: (1) a webinar from Lexis+ UK Employment team member Cathy Hoar, and Stephen Ratcliffe of Baker & McKenzie looking at some of the most significant changes contained in the Employment Rights Bill, (2) analysis by Victoria Hordern of Taylor Wessing LLP of the Data (Use and Access) Bill, (3) a successful paternity leave sex discrimination employment tribunal claim, (4) notice that all employment tribunal online services (affecting submission of ET1s, ET3s and digital applications) will be temporarily unavailable between 18.00 and 23.00 on Monday 16 December 2024 due to a planned upgrade, (5) our new Practice Note providing a destination table showing how the Employment Tribunal Procedure Rules 2024 (ET Rules 2024), in force from 6 January 2025, correspond to the ET Rules 2013 which they replace, (6) our new Precedent comprising a set of clauses that may be inserted by a customer into a contract with a supplier to help the customer (as an employer) comply with its duty to prevent sexual...

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