Unfair Dismissal
Most employees have the right not to be dismissed unfairly. Under UK employment law, a dismissal will only be fair if:
- The employer has a genuine fair reason for dismissal; and
- The employer follows a fair and reasonable process.
There are five potentially fair reasons for dismissal:
- Redundancy
- Capability or performance
- Conduct or misconduct
- Illegality or statutory restriction (e.g., employee can no longer legally perform the job)
- Some other substantial reason (SOSR) – a broad category for workplace situations that do not fit neatly into the others
If the employer cannot show one of these reasons – or does not follow a fair procedure – the dismissal may be legally considered unfair.
Employees usually need two years’ continuous service to bring a claim for unfair dismissal, although there are important exceptions, especially where discrimination or whistleblowing is involved.
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Why Unfair Dismissal Matters
A claim for unfair dismissal can be complex to bring and complex to defend. Each case depends on:
- The fairness of the reason for dismissal
- The procedures followed
- The evidence available
- How the employer communicated and behaved during the process
At Thrive Law, we regularly support both employees bringing unfair dismissal claims and employers defending them.
Unfair Dismissal Time Limits: Act Quickly
If you have been dismissed, you have:
- Three months less one day from the date of dismissal to start ACAS Early Conciliation (which is required before bringing a Tribunal claim).
It is important to seek advice as soon as possible so that your position and options can be assessed early and deadlines are not missed.
When a Dismissal May Be Unfair
Examples of situations where a dismissal may be unfair include being dismissed because you:
- Requested maternity leave or pregnancy-related rights
- Joined or took part in trade union activity
- Requested flexible working
- Needed time off for jury service
- Raised concerns or asserted your legal rights (for example, regarding minimum wage, breaks, or working time)
- Raised concerns about wrongdoing (potentially whistleblowing)
Many of these situations may also involve automatically unfair dismissal, where the employee does not need two years’ service to claim.
Constructive Dismissal vs. Unfair Dismissal
These terms are often confused, but they are different:
| Term | What It Means |
| Unfair Dismissal | The employer dismissed the employee, but did not have a fair reason or follow a fair process. |
| Constructive Dismissal | The employee resigns because the employer’s conduct has fundamentally breached their contract – for example, bullying, discrimination, major changes to role, or non-payment of salary. The resignation is treated as a dismissal in law. |
Both can lead to Employment Tribunal claims if certain legal thresholds are met.
How Thrive Law Can Help With Unfair Dismissals
For Employees
We can help you to:
- Assess whether your dismissal may be unfair or constructive
- Understand your legal rights and possible outcomes
- Begin ACAS Early Conciliation on your behalf
- Prepare and pursue a claim in the Employment Tribunal
- Negotiate settlement where appropriate
Our approach is supportive, strategic and focused on securing the best outcome for you.
For Employers
We support employers to:
- Make fair and lawful dismissal decisions
- Manage performance, conduct or redundancy processes correctly
- Respond to grievances and ACAS conciliation
- Defend Employment Tribunal claims effectively
- Reduce risk and maintain positive workplace culture
Preventative advice is often the most cost-effective approach.
Get in Touch
If you believe your dismissal may have been unfair – or if you are an employer seeking guidance on managing dismissals correctly – we are here to help.
Contact us at enquiries@thrivelaw.co.uk to speak with an employment law specialist.
We will work with you to achieve a fair and legally sound outcome.
FAQs
Unfair dismissal is where an employer dismisses an employee without a fair reason, without following a fair procedure, or both. The legal test is whether the decision to dismiss fell within the range of reasonable responses of a reasonable employer in the circumstances. A Tribunal isn’t substituting its own view of what it would have done; it’s asking whether any reasonable employer could have taken the same decision on the facts available.
Dismissal includes both direct termination by the employer and constructive dismissal, where the employee resigns because of the employer’s conduct. Our unfair dismissal page covers both here.
Under the Employment Rights Act 1996, there are five potentially fair reasons to dismiss:
- capability (the employee can’t do the job to the required standard, whether because of skill or health);
- conduct (misconduct or gross misconduct);
- redundancy (a genuine reduction in the need for work of a particular kind);
- statutory restriction (the employee can no longer legally carry out the role, for example because they’ve lost a required licence); and
- some other substantial reason (covering situations like genuine business reorganisation or breakdown of trust and confidence that doesn’t fit the other categories).
Having a potentially fair reason isn’t enough on its own. The employer must also have followed a fair procedure and acted reasonably in treating that reason as sufficient to dismiss. Our blog on unfair dismissal goes into more detail here.
Three months less one day from the effective date of termination, or six months after October 2026. ACAS Early Conciliation is mandatory before you can issue a claim, and the conciliation period extends the time limit: it adds the number of days from initial ACAS contact to the date the certificate is issued.
If you’re approaching the deadline, notify ACAS immediately rather than waiting. Missing the time limit is almost always fatal to the claim, and extensions are granted only in limited circumstances. Don’t assume the clock stops just because you’ve raised a grievance or are going through an appeal internally.
Unfair dismissal is where an employer terminates the contract, either without a fair reason or without following a fair process. Constructive dismissal is different: the employee resigns, but does so because the employer’s conduct has been so serious that it breaches either an express or implied term of the employment contract. In law, that resignation is treated as a dismissal.
For a constructive dismissal claim to succeed, the employee needs to show that the employer committed a fundamental breach of contract (or a repudiatory breach of the implied term of trust and confidence), that they resigned in direct response to that breach, and that they didn’t “waive” it by continuing to work for too long before resigning.
Both types of claim currently require two years’ continuous service in most cases, though the qualifying period for unfair dismissal is reducing to six months from January 2027 under ERA 2025. Our constructive dismissal page has more detail here.
In most cases, no. The standard qualifying period for both unfair dismissal and constructive dismissal claims is currently two years’ continuous employment. If you haven’t reached that threshold, you generally won’t be able to bring a constructive dismissal claim.
There are exceptions. Some dismissals are automatically unfair, and for those there’s no qualifying period at all. These include dismissals connected to whistleblowing, pregnancy or maternity leave, asserting a statutory right, or trade union activities. If the conduct that drove you to resign relates to one of those protected categories, the two-year period may not be a barrier, or you may have other related claims for discrimination which have the same value. If you’re unsure whether your situation might fall into an exception, get advice before assuming you have no options. Our team can carry out an initial assessment.
The qualifying period for unfair dismissal is reducing to six months from January 2027 under ERA 2025. Our constructive dismissal page has more detail here.
No, our advice would always be to get advice first. Constructive dismissal claims are technically demanding, and timing matters. Once you resign, you need to be able to show that you did so in response to the breach, without unreasonable delay. If you continue working for a significant period after the breach, a Tribunal may find you have affirmed the contract and lost the right to claim.
Before resigning, a lawyer can help you assess whether the conduct you’ve experienced is likely to meet the legal threshold, whether there are other options (grievance, negotiated exit, settlement agreement), and whether the framing of any resignation would put you in the strongest position. You can read more about what you need to prove in our blog here.
Keep a contemporaneous record of what happened, when, who was present, and how it affected you. That means emails, messages, meeting notes, any written communications from your employer, and any grievances you raised and the responses you received. If you’ve raised concerns internally, keep copies of everything.
The strongest claims are those where the employee can show a clear chain: what the employer did, that it was serious enough to amount to a fundamental breach, that they raised the issue where appropriate, and that they resigned promptly in response. A resignation letter that sets out the reasons clearly is also important. If you’re thinking about resigning, take advice on how to write that letter before you send it.
