EMPLOYER INFORMATION
UNFAIR DISMISSAL
You may need to dismiss an employee for various reasons, but to avoid unfair dismissal claims, you must follow the correct legal process.
Procedural errors or lack of justification can make a dismissal unfair.
1. When does an employee qualify for unfair dismissal protection?
Employees normally gain the right to claim unfair dismissal after 2 years’ continuous service.
Important exceptions — protection from day one
No qualifying period is required if the dismissal relates to:
• pregnancy or maternity
• health and safety concerns
• whistleblowing
• asserting statutory rights
• discrimination
Government proposals
The government has proposed removing the 2‑year qualifying period.
This has not yet come into force, but employers should prepare for significant changes.
2. Potentially fair reasons for dismissal
To justify a dismissal, the employer must show it falls into one of the five statutory categories:
• Capability – performance or health
• Conduct – misconduct or rule breaches
• Redundancy
• Statutory restriction – e.g., loss of a required licence
• Some other substantial reason (SOSR) – e.g., breakdown of trust, reorganisation
This is only the first step — the Tribunal will also assess fairness.
3. Was the dismissal “fair”?
The Tribunal will consider whether the employer acted reasonably, taking into account:
• all circumstances of the case
• size and resources of the organisation
• consistency with previous decisions
• whether alternatives were considered
4. Procedure — essential for fairness
Even if the reason is fair, a dismissal may still be unfair if the employer fails to follow a fair procedure.
You must ensure:
• a reasonable investigation
• written allegations
• a disciplinary meeting
• the right to respond and present evidence
• the right to be accompanied
• the right of appeal
Failure to follow the ACAS Code can increase compensation by up to 25%.
5. Why seek advice before dismissing?
Before dismissing an employee, it is wise to consult me because I can:
• assess the legal risks
• confirm whether the reason is potentially fair
• ensure the procedure is ACAS‑compliant
• prepare documentation
• advise on alternatives such as settlement agreements
This significantly reduces the risk of a Tribunal claim.
6. How I help employers
• assessing unfair dismissal risk
• advising on procedure and documentation
• preparing investigation notes and letters
• supporting disciplinary meetings
• representing employers in ACAS and Tribunal proceedings

