Unfair Dismissal

What is unfair dismissal?

Unfair dismissal is a statutory employment right. Under section 94 of the Employment Rights Act 1996, an employee has a right not to be unfairly dismissed, subject to the qualifying rules and exceptions in the legislation.

A dismissal can be challenged where the employer cannot establish a potentially fair reason, or where the dismissal was not reasonable in the circumstances. The question is not simply whether the employer had a reason for ending the employment. The reason, the evidence, the process followed and the circumstances surrounding the decision can all matter.

There is also an important distinction between unfair dismissal and wrongful dismissal. Unfair dismissal is primarily concerned with the statutory fairness of the dismissal. Wrongful dismissal usually concerns a breach of contract, such as failing to give the correct notice or notice pay.

What are the potentially fair reasons for dismissal?

The Employment Rights Act 1996 identifies several potentially fair reasons for dismissal. These include capability or qualifications, conduct, redundancy, a legal restriction preventing continued employment, and what is commonly called some other substantial reason.

Having one of these reasons does not automatically make a dismissal fair. The employer must also act reasonably when deciding whether dismissal is an appropriate response.

When can a dismissal be unfair even if there was a reason?

An employer may have a potentially fair reason but still face an unfair dismissal challenge if the decision-making process was unreasonable.

For example, an employer may dismiss someone for alleged misconduct without properly investigating what happened, without giving the employee a meaningful opportunity to respond, or without properly considering relevant evidence. In a capability case, the employer may need to consider whether the employee had been given a reasonable opportunity to improve or whether support or adjustments were relevant.

For disciplinary and grievance matters, the Acas Code of Practice on disciplinary and grievance procedures can be particularly relevant.

The precise procedure required depends on the circumstances. There is no single checklist that makes every dismissal fair, but a tribunal can consider whether the employer followed a reasonable process.

What if I was dismissed for misconduct?

Misconduct is one of the recognised potentially fair reasons for dismissal. It can range from relatively minor allegations to serious or gross misconduct.

For less serious misconduct, an employer will commonly use a disciplinary process involving warnings and opportunities to improve. The appropriate response depends on the facts and the employer’s procedures.

Gross misconduct can be treated more seriously. Immediate dismissal may be possible in an appropriate case, but this does not mean an employer can simply dismiss someone without investigating the allegation or allowing them a fair opportunity to respond.

If you have been dismissed following a disciplinary investigation, useful documents can include the allegation, investigation notes, disciplinary invitation, evidence relied upon, meeting notes, outcome letter and any appeal documents.

What if I was dismissed for poor performance or capability?

Capability can be a potentially fair reason for dismissal where an employee is unable to perform the role to the required standard. Capability can relate to skills, aptitude, health or other relevant qualities.

Where the issue is performance, the employer will normally need to identify the required standard, explain the concerns and give the employee a reasonable opportunity to respond and improve where appropriate.

Health-related capability cases can require additional care. If the employee has a disability, the Equality Act 2010 may also be relevant, including the employer’s duty to consider reasonable adjustments in appropriate circumstances.

A dismissal described as a capability dismissal should therefore be assessed by looking beyond the label. The underlying reason, evidence, warnings, support, adjustments and procedure may all matter.

Can redundancy be an unfair dismissal?

Redundancy can be a potentially fair reason for dismissal. However, a dismissal labelled as redundancy can still be challenged if the redundancy process was not genuine or if the employer acted unfairly in selecting or dismissing the employee.

Questions can include whether the employer genuinely needed fewer employees, whether the correct pool for selection was used, whether selection criteria were reasonable and whether appropriate consultation took place.

Redundancy cases can also involve separate statutory redundancy payment rights. These should be considered separately from the question of whether the dismissal itself was fair.

Can dismissal be automatically unfair?

Some dismissals are treated as automatically unfair because of the reason for the dismissal. In these cases, the usual qualifying period for an ordinary unfair dismissal claim does not necessarily apply.

Examples can include dismissal connected with pregnancy or certain family leave rights, whistleblowing, trade union activities, certain health and safety activities, asserting particular statutory employment rights and other protected circumstances.

There may also be discrimination issues. For example, if someone believes they were dismissed because of a protected characteristic under the Equality Act 2010, discrimination law may provide a separate claim and does not generally require two years’ service.

How long do I need to have worked there?

As of October 2026, the ordinary unfair dismissal qualifying period remains two years’ continuous employment. The government has legislated to reduce the qualifying period to six months, but that change is not yet in force. Acas currently states that the six-month change is expected to take effect in January 2027.

This distinction matters when assessing a potential claim. Someone with less than two years’ service may still have protection against automatically unfair dismissal, discrimination or other unlawful treatment, but should not assume that an ordinary unfair dismissal claim is currently available.

The applicable rules can depend on the effective date of termination and the type of claim being considered.

What should I do if I have been dismissed?

1. Keep the dismissal letter. Check the stated reason, termination date, notice arrangements and appeal instructions.
2. Collect the relevant documents. Keep your contract, policies, disciplinary or capability documents, emails, meeting notes, warnings and evidence you relied on.
3. Check the procedure. Consider whether you were given an opportunity to respond, whether relevant evidence was investigated and whether the employer followed its own process.
4. Consider an appeal. If the employer provides an appeal process, check the deadline and grounds for appeal. An appeal can be an important opportunity to challenge factual errors, procedural problems or the proportionality of the decision.
5. Check tribunal deadlines promptly. Employment Tribunal claims are subject to strict time limits. Do not wait for an internal process to finish before checking whether you need to take steps to protect your position.

What evidence can help with an unfair dismissal case?

The evidence required depends on the reason for dismissal and what is being challenged. Useful material may include:

• employment contract and staff handbook;
• dismissal or termination letter;
• disciplinary, capability or redundancy documents;
• written warnings and performance records;
• emails, messages and other relevant correspondence;
• meeting notes and investigation records;
• documents showing how similar employees were treated, where relevant;
• the employer’s appeal decision and reasons; and
• a clear chronology of the events leading to dismissal.

Do not alter or selectively edit original documents. Keeping the original correspondence and recording when important events occurred can make it easier to understand the sequence later.

What is the deadline for an Employment Tribunal claim?

Employment Tribunal claims usually have a short limitation period. For an unfair dismissal claim, the usual time limit is 3 months less 1 day from the effective date of termination.

Before bringing most Employment Tribunal claims, you will normally need to notify Acas and go through the Early Conciliation process. Early Conciliation can affect the calculation of the deadline, but it should not be treated as a reason to delay taking action.

GOV.UK states that claims are usually made within three months of employment ending or the problem occurring, subject to the relevant rules. You can find the current procedure on the GOV.UK Employment Tribunal guidance.

If you are approaching the deadline, obtain advice promptly rather than assuming an internal appeal or negotiations will automatically extend the time limit.

Can I appeal my dismissal?

Yes, where the employer’s procedure provides an appeal, an employee can normally challenge the dismissal through that process. The employer should tell you how and when to appeal.

An appeal may be relevant where you believe the decision was based on incorrect facts, important evidence was overlooked, the procedure was unfair, the sanction was disproportionate or new evidence has become available.

Appealing does not remove the need to consider Employment Tribunal time limits. If there is a potential claim, the deadline should be checked separately.

Unfair dismissal and wrongful dismissal are not the same

These terms are often confused, but they concern different legal issues.

One set of circumstances can potentially give rise to more than one type of claim. The correct route depends on the facts, employment status, reason for dismissal and evidence available.

Real-world scenarios

Dismissed after a disciplinary allegation

An employee is dismissed for alleged misconduct but believes the employer decided the outcome before completing a proper investigation. The relevant documents may include the allegation, investigation evidence, disciplinary meeting records and dismissal decision.

Dismissed for alleged poor performance

An employee is dismissed after a short performance process and believes they were not given a reasonable opportunity to improve. The assessment may need to consider the performance standard, warnings, targets, support, review periods and the employer’s explanation for dismissal.

Selected for redundancy

An employee is told their role is redundant but believes the selection process was unfair or the redundancy was not genuine. The relevant evidence could include the business rationale, consultation records, selection criteria and information about comparable roles.

Dismissed after raising a legal concern

An employee is dismissed shortly after raising a workplace concern or asserting an employment right. The timing alone does not prove the reason for dismissal, but it may make the underlying reason and documentary evidence particularly important. Depending on the circumstances, an automatically unfair dismissal or other statutory protection may be relevant.

Frequently asked questions