You may need to dismiss an employee for various reasons, but to avoid unfair dismissal claims, you must follow the correct legal process.

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Procedural errors or lack of justification can make a dismissal unfair.

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1. When does an employee qualify for unfair dismissal protection?

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Employees normally gain the right to claim unfair dismissal after 2 years’ continuous service.

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Important exceptions — protection from day one

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No qualifying period is required if the dismissal relates to:

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• pregnancy or maternity

• health and safety concerns

• whistleblowing

• asserting statutory rights

• discrimination

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Government proposals 

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The government has proposed removing the 2‑year qualifying period.

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This has not yet come into force, but employers should prepare for significant changes.

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2. Potentially fair reasons for dismissal

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To justify a dismissal, the employer must show it falls into one of the five statutory categories:

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• 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

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This is only the first step — the Tribunal will also assess fairness.

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3. Was the dismissal “fair”?

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The Tribunal will consider whether the employer acted reasonably, taking into account:

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• all circumstances of the case

• size and resources of the organisation

• consistency with previous decisions

• whether alternatives were considered

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4. Procedure — essential for fairness

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Even if the reason is fair, a dismissal may still be unfair if the employer fails to follow a fair procedure.

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You must ensure:

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• a reasonable investigation

• written allegations

• a disciplinary meeting

• the right to respond and present evidence

• the right to be accompanied

• the right of appeal

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Failure to follow the ACAS Code can increase compensation by up to 25%.

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5. Why seek advice before dismissing?

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Before dismissing an employee, it is wise to consult me because I can:

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• 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

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This significantly reduces the risk of a Tribunal claim.

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6. How I help employers

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• assessing unfair dismissal risk

• advising on procedure and documentation

• preparing investigation notes and letters

• supporting disciplinary meetings

• representing employers in ACAS and Tribunal proceedings