The week after a dismissal is a bad week for making decisions, and it is also the week when the important deadline starts running. It helps to know early which of three different questions you are actually asking: was there a good reason, was the process fair, and was the notice right.
What an employer has to show
GOV.UK guidance on dismissal explains that if you are dismissed, your employer must show that they had a valid reason they can justify, and that they acted reasonably in the circumstances. They must also be consistent — not dismissing you for something other employees are allowed to do — and must have investigated the situation fully before dismissing you, for example where a complaint was made about you.
That is the shape of an unfair dismissal question: reason plus process. A genuine reason handled through a shambolic process can still be an unfair dismissal, and a careful process cannot rescue a reason that was never valid.
Fair reasons, and reasons that are never fair
GOV.UK guidance on reasons you can be dismissed sets out the categories of potentially fair dismissal, which include capability or qualifications for the job, conduct, redundancy, a statutory restriction that makes continuing employment illegal, and some other substantial reason.
The same guide describes gross misconduct — theft, fraud, physical violence, gross negligence or serious insubordination — as conduct capable of justifying dismissal without notice, though the employer is still expected to investigate.
GOV.UK guidance on unfair and constructive dismissal lists situations where a dismissal is likely to be unfair, including where you asked for flexible working; refused to give up your working time rights, such as rest breaks; resigned and gave the correct notice period; joined a trade union; took part in legal industrial action lasting 12 weeks or less; needed time off for jury service; applied for maternity, paternity or adoption leave, or were on that leave; exposed wrongdoing in the workplace; or were forced to retire. On that last point, the guidance is explicit that compulsory retirement is not allowed unless the employer can objectively justify it, and can be challenged at a tribunal.
Constructive dismissal
Constructive dismissal is where you are forced to leave against your will because of your employer's conduct. The same GOV.UK guidance explains that the reasons for leaving must be serious, and gives examples: not paying you, suddenly demoting you for no reason, forcing you to accept unreasonable changes to how you work — such as being told to work night shifts when your contract covers day work only — or letting other employees harass or bully you.
Crucially, it explains that the employer's breach of contract may be one serious incident or a series of incidents that are serious taken together. It also advises trying to resolve matters by speaking to your employer first.
Constructive dismissal claims are difficult, because resigning is exactly what a claim requires and also exactly what weakens a claim if you do it too late or for reasons that were not raised at the time. Raising a formal grievance before resigning, and putting the objection in writing as it happens, is the practical step that helps most.
Wrongful dismissal is a different animal
Unfair dismissal is about fairness. Wrongful dismissal is about the contract — usually notice. GOV.UK guidance on dismissal explains that you must be given at least the notice stated in your contract or the statutory minimum notice period, whichever is longer, and that there are situations where you can be dismissed immediately, for example for violence.
The statutory minimum notice periods, set out in GOV.UK guidance on handing in your notice, are at least one week's notice if you have been employed between one month and two years, one week for each year if employed between two and 12 years, and 12 weeks' notice if employed for 12 years or more.
So a dismissal can be fair and still wrongful — if the employer got the notice wrong — and unfair while the notice was correct.
Ask for the reasons in writing
GOV.UK guidance on dismissal explains that you have the right to ask your employer for a written statement giving the reasons why you were dismissed if you are an employee and have completed two years' service, and that the employer must supply it within 14 days of you asking.
There is one important exception in that guidance: if you are dismissed while on Statutory Maternity Leave, your employer must give you a written statement even if you have not asked for one, and regardless of how long you have worked for them.
The deadline
GOV.UK guidance on making a claim to an employment tribunal explains that you usually have to make a claim within three months of your employment ending or the problem happening. Where you think you have lost your job unfairly, that three-month period begins on the date your employment ended.
Before making a claim you must tell Acas, and the time limit is put on hold while Acas helps you try to resolve the dispute. Acas explains this free process in its guidance on early conciliation.
What to do in the first fortnight
Ask for the reasons in writing if you qualify. Check the notice you were given against the statutory minimum and your contract. Use the internal appeal if there is one — GOV.UK guidance on what to do if you are dismissed covers appealing and getting help. Notify Acas early rather than at the end of the three months. And keep a dated note of what was said and by whom, while it is fresh.
Free advice is available from Acas, whose guidance on dismissals is written for employees as well as employers, and from Citizens Advice, a registered charity, which publishes guidance on problems at work.
Different rules in Northern Ireland
Northern Ireland has its own employment legislation, including a statutory minimum dismissal procedure, and claims go to the Industrial Tribunals rather than an employment tribunal. nidirect publishes guidance on dismissal for workers there.
Fact check
The requirement for an employer to show a valid, justifiable reason and to have acted reasonably, to be consistent, and to have investigated fully before dismissing, was checked against GOV.UK guidance on dismissal.
The categories of potentially fair dismissal and the description of gross misconduct as capable of justifying dismissal without notice were checked against GOV.UK guidance on reasons you can be dismissed.
The list of situations where a dismissal is likely to be unfair, the position on compulsory retirement, the definition of constructive dismissal, the examples given, and the point that a breach may be one incident or a series taken together, were checked against GOV.UK guidance on unfair and constructive dismissal.
The rule that notice must be the greater of the contractual and statutory minimum, and the possibility of immediate dismissal in some situations, were checked against GOV.UK guidance on dismissal. The statutory minimum notice periods — one week between one month and two years, one week per year between two and 12 years, and 12 weeks after 12 years — were checked against GOV.UK guidance on handing in your notice.
The right to request written reasons for dismissal after two years' service, the 14-day deadline for the employer to supply them, and the automatic right to written reasons when dismissed on Statutory Maternity Leave, were checked against GOV.UK guidance on dismissal.
The three-month time limit, its start date on the day employment ends for unfair dismissal, the requirement to notify Acas first and the pausing of the time limit during conciliation were checked against GOV.UK guidance on making a claim to an employment tribunal and Acas guidance on early conciliation.
The separate position in Northern Ireland was checked against nidirect.
No lawyers, law firms, judgments or individual legal cases were quoted or discussed.
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