Check if your dismissal is unfair

This advice applies to England. See advice for See advice for Northern Ireland, See advice for Scotland, See advice for Wales

Being sacked from your job can come as a huge shock and it often feels unfair. The legal term for being sacked is ‘dismissal’.

Your employer is allowed to dismiss people, but if they do it unfairly you can challenge your dismissal.

To find out if your dismissal is unfair, you’ll need to check:

  • that you were an employee - you can only challenge an unfair dismissal if you were an employee

  • how long you’ve worked for your employer - you can usually only challenge a dismissal if you've worked there 2 years or more

  • whether the law says the reason for your dismissal is unfair

You'll need to check quickly - you’ve got 3 months less a day from your last day of employment to start taking action for an unfair dismissal.

If you’re a member of a trade union, contact them as soon as possible. They might be able to give you legal advice about your situation.

Check any insurance policies you have - they might cover the cost of going to a lawyer. Look to see if the policies include ‘legal expenses insurance’. It’s worth checking your:

  • household insurance

  • agreement with your credit card company

If you’re not sure, contact the insurance company and ask them if the policy will cover your legal costs.

To check if you can do anything to challenge your dismissal, follow these 4 steps:

1. Check you’ve actually been dismissed

You can only challenge a dismissal if you can show it actually happened. You’ve been dismissed if your employer has done any of the following:

  • ended your contract of employment, with or without notice

  • refused to renew your fixed-term contract

  • made you redundant, including voluntary redundancy

  • dismissed you for going on strike

  • stopped you from coming back to work after maternity leave

You’ll need evidence you were dismissed, such as an official termination letter, or emails and text messages from your employer.

You haven’t been dismissed if you’ve:

  • been suspended

  • resigned by choice

If you resigned because your employer did something to seriously breach your employment contract, it might still count as a dismissal. This is called a ‘constructive dismissal’. Check if you can claim constructive dismissal.

2. Check that you were an employee

You can only challenge an unfair dismissal if you were an employee.

You might have been an employee even if your employer or your contract said you were self-employed. You might not have been an employee if for example you worked for an agency or you weren't guaranteed to get any work.

If you’re not sure if you were an employee, check your employment status.

If you don’t have dismissal rights, you can still ask the organisation you work for to reconsider your dismissal.

If you decide not to ask for your job back, the best thing to do is to prepare for what happens next and find another job.

3. Check you’ve been dismissed for a reason that’s definitely unfair

Your employer should tell you why they’re dismissing you. If you’re pregnant or have worked there for at least 2 years, you’ve got the right to get a written explanation - this should be a letter or email.

If you don’t get a written explanation

Ask your employer for a written explanation as soon as possible if they haven’t given you one. It’s best to ask in writing so you can prove when you asked.

You can ask for an explanation even if you don't have the right to one - but your employer doesn't have to say yes.

If you have the right to a written explanation, your employer has to send it within 2 weeks of you asking. It might help to tell them this when you ask - not all employers know about this rule.

If you don’t understand the written explanation

Tell your employer if you can’t understand your written explanation - for example if:

  • the reasons are written in legal language

  • the explanation refers to another document, such as a contract, but doesn’t include a copy of it

They should give you enough information to help you understand your written explanation. They don’t have to include all the details or all their evidence.

If you think the written explanation is untrue or unfair you might have been unfairly dismissed.

The law says it’s always unfair if you’re dismissed because of an ‘automatically unfair’ reason.

You can also challenge your employer if they dismiss you for a discriminatory reason.

If you were sacked for a different reason and you’ve worked for your employer for less than 2 years, you don’t have the right to challenge it. This might feel unfair, but the best thing you can do is plan for what happens after you’ve been dismissed.

Check if it’s an ‘automatically unfair’ reason

It’s always ‘automatically unfair’ if you’re dismissed because you:

  • are pregnant or on maternity leave

  • have asked for your legal rights at work, for example to be paid minimum wage

  • took action about a health and safety issue

  • are a trade union member and took part in trade union activities including official industrial action or you were acting as an employee representative

  • have reported your employer for wrongdoing, which is called whistleblowing

It’s automatically unfair if you’re dismissed because you work more than one job, if either:

  • you’re on a zero hours contract

  • your average weekly wage is less than £123 per week

If you work in a shop or a betting shop, you have special rights not to work on Sundays. This is called ‘opting out’. If your employer dismisses you because you opted out, this is automatically unfair. Check if you have the right to opt out of working on Sundays.

If you were dismissed for whistleblowing or raising a health and safety issue

You might be able to get your employer to keep paying your wages while you apply to the employment tribunal. This is called ‘interim relief’.

You must apply for interim relief within 7 days of being dismissed. Check how to apply for interim relief on the website of Protect. Protect is a charity that helps whistleblowers.

If you’ll have worked for your employer for at least 2 years when your job ends, it’s also automatically unfair if you’re dismissed because:

  • the business was transferred to another employer

  • you didn’t declare a spent conviction

Your employer can still dismiss you if you’re in any of these categories - but it can’t be the reason you’re dismissed.

If you think you might have been dismissed for one of these reasons, talk to an adviser.

Check if you’ve been discriminated against

It might be discrimination if you think you were dismissed because you’re:

  • pregnant or on maternity leave

  • from a particular race, ethnicity or country

  • married or in a civil partnership

  • a man or a woman

  • disabled

  • lesbian, gay, bisexual 

  • transgender

  • have a particular religion or set of beliefs

  • older or younger than the people you work with

Your employer can still dismiss you if you’re in any of these categories - but it can’t be the reason you’re dismissed. 

In practice, your employer may not always give you an honest reason for your dismissal. You can check if your problem at work is discrimination.

Challenging your dismissal

If you were sacked because of an automatically unfair reason, you can make an unfair dismissal claim. Check how to challenge your dismissal.

If you were sacked for a discriminatory reason, you can make a claim for discrimination. If you’ve been employed for at least 2 years, you can make a claim for unfair dismissal at the same time. Check how to challenge your dismissal.

Common issues

If you’re on maternity leave

Lots of people think you can’t be dismissed while you’re on maternity leave.

In fact, your employer can dismiss you on maternity leave, but it can’t be the reason for your dismissal.

You have the right to return to your job, unless:

  • you’re made redundant and there’s no suitable alternative work for you

  • you’ve been on leave longer than 6 months and it isn’t possible to return to your old job - in this situation your employer must offer you suitable alternative work

  • you’ve breached your contract - for example by working for another organisation as an employee while getting maternity pay from your current employer

You should check whether your redundancy is genuine and fair if you’re being made redundant while on maternity leave.

If you’re dismissed while you’re on maternity leave or soon after you return to work, ask your employer as soon as possible why you’re being dismissed.

If you’re on probation

Your first few weeks or months in a job are often called being ‘on probation’. Being on probation doesn’t give you any specific legal rights.

You can be dismissed with 1 week’s notice while you’re on probation - or longer if your contract says you’re entitled to more notice.

Check your contract to see what it says about your probation period and when you can be dismissed.

If your employer is dismissing you because they’re not happy with your work, ask them if they’ll extend your probation period or give you extra training so you can do your job better. They don’t have to agree though, and there’s nothing to stop them dismissing you. It could be time to look for another job.

If you’re on a fixed-term contract

You’re on a fixed-term contract if your job will finish on a set date or when a certain project is finished.

You can be dismissed before the end of a fixed-term contract if your contract says you can. You’ll usually get 1 week’s notice, unless you’ve worked for your employer for 2 years or your contract says you’re entitled to more.

You can be dismissed at the end of the fixed-term contract as long as your employer does it fairly.

4. Check if you’ve been dismissed for a reason that might be fair

If you’ll have worked for your employer for at least 2 years when your job ends, your dismissal must be for a fair reason.

There are 5 legal reasons for dismissal that are ‘potentially fair’. This means it might be fair if you were dismissed because:

  • you’re not capable of doing your job - for example because your performance is poor or you’ve been off sick a lot

  • you’ve behaved badly - which is called misconduct or, for things like violence or criminal activity, gross misconduct

  • there’s a legal reason why your employer can’t keep you on - usually this means you’ve lost the right to work in the UK

  • your role is redundant - you’ll need to look at different rules to check if it’s fair

  • of ‘some other substantial reason’ - this isn’t set out in law, but it means your employer has to show they had a good reason for dismissing you

Whether your dismissal is actually unfair will depend on all the details of your individual case, for example:

  • whether your employer has treated you in the same way as other employees in similar situations

  • whether your employer has tried to help you overcome any issues, for example by giving you more training to help your performance

  • if your employer has followed a fair procedure to investigate any problems and to choose whether to dismiss you

If you want to check if your dismissal was unfair, talk to an adviser.

Challenging an unfair dismissal

If you think your dismissal was unfair, check how you can challenge your dismissal.

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