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Employment tribunals - winning your claim for unfair dismissal - the general legal tests

When a tribunal looks at your claim for unfair dismissal there are certain legal tests that they will apply. A dismissal can be unfair for reasons other than the one the employer gave for dismissing you. For example, it may be unfair if your employer didn't follow the proper process for disciplining and dismissing you.

The tribunal will also want to know that you are legally allowed to make a claim for unfair dismissal because some workers aren't allowed to make a claim.

This page tells you more about the general legal tests that a tribunal will apply to see if you can continue with a claim for unfair dismissal.

Are you an employee?

To make a claim for unfair dismissal, you must be an employee. You're usually considered to be an employee if you work regularly for someone and have an employment contract which sets out the terms and conditions of your employment.

You may not be an employee if you're:

  • described as self-employed by your employer
  • an agency worker
  • on casual or zero hours contracts.

You may still be an employee even if your employer describes you as self-employed. If you’re not sure, check your status.

  • Find out more about your work status, at www.gov.uk

How long have you worked for your employer?

If you started work on or before 5 April 2012 you need one year’s service before you can make a claim to an Employment Tribunal.

If you started your job or after April 6 2012 you can only make a claim for unfair dismissal if you've worked for your employer for more than two years.

A tribunal will want to know:

  • when you started work
  • when you stopped work
  • if there any gaps when you didn't work and why this happened
  • whether your employer has changed their name or company identity.

If there are gaps in your employment over the last two years, you may still be able to claim unfair dismissal but you may get reduced compensation.

If your employer has changed their name or identity, you may need to find out if you should have been covered by the TUPE rules, which protect you if your employer changes hands. If your employer has not followed these rules, you may be able to make a claim for automatic unfair dismissal.

Have you been dismissed?

It may not be clear whether you've actually been dismissed. For example, an employer may claim that you walked out or say that you've been laid off. Being laid off means that there's a temporary break in your employment because there isn't enough work for you to do. It doesn't mean that you've lost your job.

For unfair dismissal claims, the time limit runs from the last day on which you worked. This is called the effective date of termination.

A tribunal will want to see if there's a letter of dismissal. If there isn't a letter of dismissal, they will want to get details of:

  • when and how you found out you were dismissed
  • what exactly was said
  • who said it
  • whether there were any witnesses
  • what happened after you were told.

If you're not sure that you've been dismissed, you may have to ask your employer to confirm this has happened.

Are you making your claim within three months of the dismissal?

There are strict time limits for making a claim to an employment tribunal. The time limit is three months minus one day after the date of your dismissal or the date when your notice period ran out. You must give the exact date you were told you were dismissed. If you were given notice, you must know when the notice period ran out.

If you are within the three-month time limit of these dates, you'll be able to make a claim. If the time-limit has ended, you'll need to make a quick decision about whether to make a late claim.

Late claims are not usually accepted. You will have to have very strong reasons for why your claim is late and must start your claim as soon as you realise you have missed the deadline and you must also have a good chance of winning your claim.

Did your employer follow the Acas code?

The Advisory, Conciliation and Arbitration Service (Acas) is an independent organisation that aims to improve employment relations and help resolve work disputes. The Acas code sets out the disciplinary and dismissal procedures an employer should follow. Employers don't have to follow the Acas code but if they don't, this will count against them in a tribunal.

The tribunal will look to see if your employer followed the code. The things they are looking for include:

  • what your employer did to investigate the allegations
  • whether there was a disciplinary hearing, when it happened and who was there
  • whether you were given enough information about why the meeting was taking place and time to prepare for the hearing
  • whether you were told that you had the right to take someone with you
  • whether you were told the outcome of the hearing in writing
  • whether you were given a right of appeal
  • if you appealed, when the hearing took place, what happened and who was there
  • whether the appeal was carried out by a different person. If it wasn't, whether that was reasonable
  • whether you had the outcome of the appeal in writing.

If your employer has not followed these steps, it is likely that the tribunal will find your dismissal unfair.

However, if the only reason that your dismissal is unfair is because your employer failed to follow the code, your compensation may be reduced. The tribunal should make a basic award but they may reduce the amount. This is known as a Polkey reduction. Depending on why you were dismissed you could lose all or some of your compensatory award.

The Acas code and redundancy

Your employer does not have to follow the Acas code if they are making selections for redundancy. However, they must be able to demonstrate that the process they used to make their choices was fair and reasonable.

Next steps

Other useful information

  • The Acas code on disciplinary and grievance procedures, available at www.acas.org.uk
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