Unfair dismissal

If you are a senior executive or director facing unfair dismissal, we have the skills and experience to help you. Most of our cases reach an amicable resolution. But for the few cases where the employer is entrenched, we understand how employment tribunal proceedings work and can advise you on your options, working with specialist litigation support where formal representation is required.

We are happy to discuss your situation and provide an initial scope and fee estimate. Please do call us.

Why you would want to work with us

We have resolved a great number of unfair dismissal situations over the years. We offer you a strong employee-focused team of employment lawyers . We offer:

• A skilled eye for identifying the tactics and approach you need to use.
• Judgment on the options open to you. We tell you what is likely to be achievable and how to go about it.

Claiming unfair dismissal

Generally, to claim unfair dismissal, you currently have to have worked for your employer for at least two years. There are limited exceptions to the qualifying length of service requirement, for example where the dismissal is for reasons connected to pregnancy, certain flexible working requests, health & safety, and whistleblowing.

From January 2027, the qualifying period for ordinary unfair dismissal claims is expected to reduce to 6 months.

In many cases we seek to achieve a settlement  on good terms, which is often a better option for you than litigation for a number of reasons.  Sensible negotiation to explore settlement is not seen as a sign of weakness. Often settlement discussions are run in parallel with the formal Employment Tribunal claim.

Was your dismissal fair in legal terms?

Employers should treat employees fairly, justly, and reasonably when terminating employment. For an ordinary unfair dismissal claim, the employer must have dismissed the employee for a potentially fair reason and acted reasonably in treating that reason as sufficient to dismiss. Employment law sets out potentially fair reasons, which include the employee’s capability, conduct, redundancy or “some other substantial reason”.

The legal test for fairness is whether the employer has acted within a "range of reasonable responses" when deciding to dismiss. This applies whether dismissal follows prior disciplinary actions and warnings, deciding that redundancies are necessary or a single act the employer deems to have been gross misconduct.

Dismissal for poor performance

This is probably the most common reason for dismissal. Unless it amounts to gross misconduct, poor performance is very unlikely in practice to constitute a ground for summary termination for gross misconduct.

If the poor performance is not tantamount to gross misconduct, the employer may consider performance management plans. Eventually, if performance does not improve and the employer has gone through a fair processes, usually involving a series of formal warnings culminating in a final warning, the employer can fairly dismiss for inadequate performance.

Redundancy dismissals can be unfair 

Redundancy is one of the potentially fair reasons for dismissal. However, a genuine redundancy does not automatically mean that a dismissal is fair. The employer must still follow a fair process and act reasonably in the circumstances. Statutory redundancy pay is separate from any potential unfair dismissal claim.

Many employers are concerned about timescales and want to deal with a redundancy situation as quickly as possible. It is possible to act swiftly, but the paperwork and evidence of fair selection must be prepared and applied.

Appeal against unfair dismissal

There is no automatic right to appeal a redundancy decision.  However, unfair selection for redundancy is one of the most common areas where the Employment Tribunal may find that an unfair dismissal has taken place, particularly where the selection process was flawed or there was no meaningful opportunity to challenge the decision. Many redundancy situations which would have ended up being dismissals are concluded under settlement agreements.

Discrimination

If you have been dismissed for a discriminatory reason, you may also have a claim for discrimination as well as, or instead of, unfair dismissal. You have options and we can help you consider these. You can make a claim for discrimination to an employment tribunal instead of, or in addition to, a claim for unfair dismissal.  There is no requirement to work for a specific length of time to bring a claim for discrimination.

Failing to follow a fair procedure 

With dismissals, it is important to consider the procedure that was followed. Failure to do so can result in unfair dismissal on procedural grounds. This can happen even where the reasons for dismissal are sound. It is not uncommon for employers to be so incensed by alleged behaviour, proven or otherwise, that they dismiss employees without due regard to the correct process.

Regardless of conduct or alleged conduct, an employer must follow a fair disciplinary procedure, which will generally include giving the employee an opportunity to respond to the allegations and, where applicable, to appeal against the dismissal.

We can quickly work through the details for you and identify whether and how the employer has failed on a technicality. If it has, this can lead to a successful claim for unfair dismissal or provide leverage to negotiate a better settlement.

Time limits for claiming unfair dismissal

A claim for unfair dismissal must be made to an employment tribunal. It is important to act quickly in these circumstances as any claim to an employment tribunal will generally need to be brought within three months less one day from the date of the dismissal. Before making a claim to the employment tribunal, the case must first be referred to ACAS for early conciliation. We can help you navigate through this complex process.

Constructive dismissal

Employees often want to resign and claim the unfair treatment they received forced them to resign – this is known as constructive dismissal. Constructive dismissal claims can be more challenging to prove than claims for unfair dismissal.