Unfair dismissal Definition

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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

Checklist—changing terms and conditions of employment

Checklist—changing terms and conditions of employment STOP PRESS: The Code of Practice (Dismissal and Re-engagement) Order 2024, SI 2024/708 brings the Code of Practice on Dismissal and Re-engagement (the Code) into effect from 18 July 2024. The Code does not apply where the prospect of dismissal and re-engagement has been raised by the employer with either the employee and/or their representatives before 18 July 2024. For further information, see: LNB News 19/07/2024 18 and LNB News 28/05/2024 52. However, the draft Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024, which would empower a tribunal making a protective award to uplift (or reduce) the award for unreasonable failure to comply with the Code (see LNB News 23/04/2024 11) was not approved prior to the prorogation of Parliament on 24 May 2024 and did not come into force on 18 July 2024 as was expected. For further guidance, see Practice Note: Changing terms and conditions of employment—Statutory Code of Practice on ‘fire and re-hire’. This...

Checklist—process for changing terms and conditions: client outline

Checklist—process for changing terms and conditions: client outline STOP PRESS: The Code of Practice (Dismissal and Re-engagement) Order 2024, SI 2024/708 brings the Code of Practice on Dismissal and Re-engagement (the Code) into effect from 18 July 2024. The Code does not apply where the prospect of dismissal and re-engagement has been raised by the employer with either the employee and/or their representatives before 18 July 2024. For further information, see: LNB News 19/07/2024 18 and LNB News 28/05/2024 52. However, the draft Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024, which would empower a tribunal making a protective award to uplift (or reduce) the award for unreasonable failure to comply with the Code (see LNB News 23/04/2024 11) was not approved prior to the prorogation of Parliament on 24 May 2024 and will not come into force on 18 July 2024 as was expected. For further guidance, see Practice Note: Changing terms and conditions of employment—Statutory Code of Practice on ‘fire and...

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 368 Practice Notes on Unfair dismissal

Price and services notice—Employment Tribunal—range of costs—law firms

Price and services notice—Employment Tribunal—range of costs—law firms Our pricing for bringing and defending claims for unfair or wrongful dismissal Simple case: £[insert range] (excluding VAT) Medium complexity case: £[insert range] (excluding VAT) High complexity case: £[insert range] (excluding VAT) We charge based on an hourly rate which varies depending on the member of staff dealing with your matter. Our lowest hourly rate is £[insert rate] and our highest hourly rate is £[insert rate]. The seniority of the members of staff dealing with your case will depend on its complexity. We will discuss this with you when you instruct us. Factors that could make a case more complex: • if it is necessary to make or defend applications to amend claims or to provide information about an existing claim; • defending claims that are brought by litigants in person; • making or defending a costs application; • complex preliminary issues such as whether the client is disabled (if this is not agreed by the parties); • the number...

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...

Dive into our 91 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 250 Q&As about Unfair dismissal

Continuation of contract order can be made even though sponsor had lost licence (Rathod v Clinica Private Healthcare)

Employment analysis: In an unfair dismissal case brought by a migrant sponsored worker seeking interim relief, an employment tribunal may make a continuation of contract order even if the employer has lost its sponsorship licence because making such an order does not create an employment contract or relationship of employment, according to the London Central Employment Tribunal.

Restructuring & Insolvency weekly highlights—17 October 2024

This week's edition of Restructuring & Insolvency weekly highlights includes an overview and analysis of the incoming the Employment Rights Bill, the latest monthly enforcement outcomes published by the Insolvency Service, an analysis of a restructuring plan (UK Commercial Property Finance Holdings Ltd v Cine-UK Ltd), plus a round-up of other news and cases for restructuring and insolvency professionals.

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