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

This advice applies to England

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 might 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 only employees are 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. If you’re not sure, check your employment status.

How long have you worked for your employer?

You can usually only make a claim for unfair dismissal if you've worked for your employer for 2 years or more.

You might not need to have worked for 2 years or more if you were dismissed for certain reasons, called 'automatically unfair' reasons. For example, it's automatically unfair to dismiss you because you're pregnant or because you reported a health and safety issue. You should check if your dismissal was automatically unfair

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 2 years, you might still be able to claim unfair dismissal but you might get reduced compensation.

If your employer has changed their name or identity, you might 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 might be able to make a claim for automatic unfair dismissal. Find out more about automatic unfair dismissal.

Have you been dismissed?

It might not be clear whether you've actually been dismissed. For example, an employer might 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 might have to ask your employer to confirm this has happened.

Are you making your claim within 3 months of the dismissal?

There are strict time limits for making a claim to an employment tribunal. The time limit is 3 months less 1 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 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. 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.

If you or your employer didn't follow the Acas code, this might affect your compensation. If your employer didn’t follow the code, your compensation could be increased by up to 25%. If you didn’t follow the Acas code, your compensation could be reduced by up to 25%. You can check the full Acas Code on the Acas website.

However, if the only reason that your dismissal is unfair is because your employer failed to follow the code, your compensation might be reduced. The tribunal should make a basic award but they might 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. Find out when your compensation might be reduced.

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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