Fair Treatment and Unfair Dismissal Protections

1. What counts as an “unfair dismissal” under UK employment law?
   An "unfair dismissal" under UK employment law occurs when an employer ends a contract without a fair reason or fails to follow a fair process, even if there was a potentially fair reason. Reasons for dismissal can be unfair if they are related to issues like capability, misconduct, or redundancy, but the employer acted unreasonably. Additionally, dismissals for certain reasons, such as whistleblowing, taking maternity leave, or asserting statutory rights, are "automatically unfair".
   
   
2. How long does an employee need to work before they are protected against unfair dismissal?

Currently, an employee must work for an employer for at least two years to be protected against unfair dismissal in the UK. However, new legislation is expected to change this, making unfair dismissal protection a "day one right" starting in 2027. 

Current law

• To be eligible to claim unfair dismissal, an employee must have worked for the same employer for at least two years.
• There are exceptions to this two-year rule, such as dismissal for reasons related to pregnancy, health and safety, or trade union activities. 

Future change

• The upcoming Employment Rights Bill is expected to eliminate the two-year qualifying period.
• Once this new law takes effect, employees will be protected from unfair dismissal from their very first day of employment.
• The expected date for this change is 2027.

acas.org.ukacas.org.uk. 

3. What are some automatically unfair reasons for dismissing an employee (reasons that are illegal regardless of length of service)?

Automatically unfair reasons for dismissal in the UK, regardless of length of service, include being fired for whistleblowing, trade union membership, or exercising a statutory right. Other examples are dismissal due to pregnancy or family leave, asserting a health and safety right, or because of pregnancy. Dismissal can also be automatically unfair if it was for membership in a trade union or taking part in a lawful strike.

Example include:
– Pregnancy or maternity: Dismissing a woman because she is pregnant, has given birth, or is taking maternity leave is automatically unfair.
– Family leave: Similar protection covers taking or requesting paternity leave, adoption leave, parental leave, etc.
– Whistleblowing: Terminating a worker for having made a protected disclosure (reporting wrongdoing) is automatically unfair under the Public Interest Disclosure Act.
– Trade union membership/activities: It’s illegal to fire (or select for redundancy) someone for being a union member, for joining a union, or for taking part in lawful union activities. Likewise, dismissing employees for taking part in official industrial action in the first 12 weeks of a strike is automatically unfair.
– Health and safety: If an employee is dismissed for raising genuine health and safety concerns or refusing to work in unsafe conditions, it’s automatically unfair.
– Asserted statutory rights: For example, you cannot dismiss someone for asking to be paid the minimum wage, or for asserting their right to a written contract or rest breaks.
– Flexible working request: Dismissing an employee for making a legal flexible working request is automatically unfair
– Discrimination: While discrimination (e.g. firing due to race, gender, etc.) is usually handled under equality laws rather than labeled “unfair dismissal,” any dismissal on discriminatory grounds would be unlawful from day one as well. (Protected characteristics are covered by the Equality Act 2010.)
In all these cases, the usual two-year service requirement does not apply.

acas.org.uk.

4. What steps should an employer take when dismissing an employee to ensure the dismissal is fair and lawful?

To minimize the risk of an unfair dismissal, an employer should follow a fair and reasonable procedure and have a valid reason for the termination. Key steps include:

• Investigation – Look into the issues leading to potential dismissal (e.g. allegations of misconduct or poor performance) and gather facts.
  
  
• Communication of concerns – Inform the employee of the problems and evidence, and invite them to a meeting. For misconduct or performance issues, the employee should know what the accusations or shortcomings are in advance.
  
  
• Disciplinary hearing/meeting – Hold a meeting with the employee to discuss the issue. Allow them to respond to allegations or explain their performance. The employee has a statutory right to be accompanied by a colleague or union representative at formal disciplinary hearings.
  
  
• Consideration – Don’t decide in advance. Consider the employee’s explanation or any mitigating factors. If it’s a performance issue, consider whether additional training or time to improve has been or could be offered. If it’s misconduct, consider the gravity and whether it’s gross misconduct or a repeated offense where prior warnings were given.
  
  
• Penalties short of dismissal – Determine if a warning, training, demotion or other measures could suffice instead of firing. Only move to dismissal if it’s justified. Typically, for capability or minor misconduct, employers should give warnings and chances to improve unless the first offense is very serious.
  
  
• Notice and appeal – If deciding on dismissal, provide the decision in writing with the reason, give the proper notice period (or pay in lieu of notice), and inform the employee of their right to appeal the decision. An appeal, heard by someone not involved in the initial decision if possible, is part of a fair process.
  
  
• Consistent application – Ensure you have been consistent compared to how similar cases were handled in the past. Arbitrary or wildly inconsistent treatment can be deemed unfair.

Following the Acas Code of Practice on disciplinary and grievance procedures is important; an Employment Tribunal will look at whether the employer followed these general principles of fairness. If an employer unreasonably fails to follow the Acas Code, any compensation awarded can be increased by up to 25%. In short, a fair procedure (and documentation of it) coupled with a sound reason is the cornerstone of a lawful dismissal.

acas.org.ukacas.org.uk
solegal.co.uk

5. If an employee wins an unfair dismissal claim, what remedies can the Employment Tribunal order?

If a tribunal finds an employee was unfairly dismissed, there are a few possible remedies:

1. Reinstatement – The tribunal can order the employer to give the employee their old job back, as if they’d never been dismissed. This includes restoring their pay, benefits, and continuous service. In practice, reinstatement is rare and usually ordered only if both parties agree it’s feasible, since trust may have broken down.

2. Re-engagement – Alternatively, the tribunal might order the employer to re-engage the employee in a different but comparable role within the organization. This is also uncommon for similar reasons.

3. Compensation – The most common remedy is a monetary award. 

6. Can an employer or employee appeal an Employment Tribunal’s decision in an unfair dismissal case?

Yes, an employer or employee can appeal an Employment Tribunal's decision in an unfair dismissal case to a higher court, typically the Employment Appeal Tribunal. Appeals are usually based on a point of law rather than a disagreement with the facts, and a party must act within a specific time limit to file an appeal.

7. How are whistleblowers protected from dismissal or victimization under the Public Interest Disclosure Act?

Whistleblowers are protected under the Public Interest Disclosure Act 1998 (PIDA), which makes it unlawful for employers to dismiss or victimise someone for raising concerns about wrongdoing. If an employee is fired for making a protected disclosure, the dismissal is automatically unfair, with no minimum service requirement and no cap on compensation. Employers and co-workers also cannot subject a whistleblower to any detriment, such as harassment, demotion, or loss of opportunities. Protection applies to employees, workers, agency staff, contractors, and even former employees. If retaliation occurs, whistleblowers can bring a claim in the Employment Tribunal, and in some cases may seek interim relief.

8. Do employees have the right to be accompanied by a colleague or union representative in disciplinary or grievance hearings?

Yes. By law (Employment Relations Act 1999), an employee has the right to be accompanied by a trade union representative or a co-worker at a formal disciplinary hearing or grievance hearing. This means if a meeting could result in a formal warning, disciplinary action, or other sanction (or is an appeal hearing about such an issue), the worker can request to have someone with them, and the employer must allow it. 

9. Is it legal to dismiss or discipline an employee for being a union member or engaging in union activities?

No, it is unlawful. Employees are explicitly protected against being terminated or penalized for union membership or activities. Dismissing someone because they are a union member (or conversely, because they refused to join a union) is automatically unfair, regardless of length of service. Likewise, an employer cannot lawfully discipline or subject an employee to any detriment for participating in legitimate trade union activities. 

This protection extends to activities such as organizing or attending union meetings, voting in union ballots, or seeking official union recognition. The law (now in the Trade Union and Labour Relations (Consolidation) Act 1992) makes such actions by an employer unlawful and any dismissal on those grounds automatically unfair. Employees are also protected from selection for redundancy on union-related grounds. In addition, under laws introduced in 2019, blacklisting workers for trade union activity (e.g. colluding to deny them employment) is a criminal offense. In short, union membership and activities are firmly protected, and an employer who retaliates against an employee for those reasons would be in breach of the law.

10. Are part-time workers protected from being treated less favorably than comparable full-time employees?

Yes. Part-time workers have legal protection to ensure they are not treated worse than full-time colleagues just because of their part-time status. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 make it unlawful to treat a part-time worker less favorably than a comparable full-time worker in the same organization, unless the difference can be objectively justified. This covers rates of pay, benefits, training, promotion, and all other terms and conditions. 

11. What laws protect employees from workplace harassment or bullying by managers or co-workers?

Employees are protected from harassment by a combination of laws. If the harassment is related to a protected characteristic (such as sex, race, religion, disability, age, etc.), the Equality Act 2010 provides robust protection. Under the Equality Act, harassment is unlawful when it’s unwanted conduct related to a protected trait that violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. 

12. What is “constructive dismissal” and can an employee claim unfair dismissal if they resign because of the employer’s conduct?

Constructive dismissal is when an employee resigns due to the employer’s serious breach of contract or fundamentally unfair conduct. In such cases, the law treats the resignation as an actual dismissal essentially, the employee was “forced out.” 

13. How can employers reduce the risk of unfair dismissal claims (for example, by following proper procedures and documentation)?

Employers can do several things to mitigate the risk of unfair dismissal claims: follow fair procedures, keep clear records, and treat employees consistently and reasonably. Some best practices include:

• Adhere to disciplinary and capability procedures – Have a written disciplinary policy (ideally aligned with the Acas Code) and follow it. This typically means giving written warnings for misconduct or poor performance and allowing the employee a chance to improve, rather than jumping to dismissal except in gross misconduct casessolegal.co.uk.
  
  
• Comply with the Acas Code of Practice – This code lays out the steps for fair discipline and grievance handling. Sticking to it not only ensures fairness but also avoids the 25% penalty uplift that tribunals can apply if the code is ignoredsolegal.co.uk.
  
  
• Document everything – Maintain clear, written records of performance issues, warnings, investigatory meetings, witness statements in misconduct cases, etc.solegal.co.uk. If you have to defend a dismissal later, contemporaneous documents are vital evidence that you acted fairly. Keep notes of meetings and the employee’s responses. Also document any prior counseling, training, or support given.
  
  
• Avoid knee-jerk reactions – Don’t terminate someone in the heat of the moment. Take time to investigate and reflectsolegal.co.uk. For instance, if there’s an allegation of misconduct, suspend if necessary and investigate rather than firing on the spot. Rash decisions often lack the necessary fairness and can seem unreasonable.
  
  
• Train managers – Ensure anyone with hiring/firing power knows the basics of unfair dismissal law and the importance of procedure. Many claims arise from a well-intentioned but untrained manager bypassing process.
  
  
• Consistency and non-discrimination – Treat similar situations similarly. Inconsistency (e.g. one employee is dismissed for an offense while another got a warning for the same) can suggest unfairness. Also, ensure dismissals are not tainted by discrimination or retaliation (which can lead to automatic unfair dismissal or other claims).
  
  
• Use probation periods and appraisals – Address problems early. If an employee isn’t a fit, it’s easier and lower-risk to dismiss during a clearly managed probation period. Provide feedback during probation and document any extensions or concerns. For longer-term staff, regular appraisals with honest feedback can support that you gave the employee a chance to improve or knew of issues.
  
  
• Settlement agreements when appropriate – In some cases, if a dismissal is contentious, an employer might consider a without-prejudice discussion and a settlement agreement (formerly called compromise agreement) to mutually part ways. This can avoid a tribunal claim if handled properly (employee must get independent legal advice, etc.).
  
  
• Legal advice on tricky situations – If a potential dismissal involves complicating factors (e.g. long service employee, or someone who raised a complaint of bullying recently, or possible disability-related performance issues), consult HR or legal counsel before acting. They can help navigate ensuring it’s fair and identify any hidden legal pitfalls (like a need to consider reasonable adjustments for a disabled worker).

By taking these steps, employers demonstrate that any termination was fair both substantively and procedurally. Even if an employer feels an firing is justified, how it’s done is crucial. Doing it “by the book” not only reduces the risk of losing a tribunal case, it may even prevent the situation from escalating to a claim in the first place. Good processes and documentation can also make employees feel they were treated more fairly, which in turn can reduce the likelihood they challenge the decision. In short: follow the right steps, keep records, and don’t make hasty decisions

solegal.co.uk.