Frequently Asked Questions
Unfair dismissal, constructive unfair dismissal and wrongful dismissal
I think my employer is about to terminate me. What are my rights?
Your employer is permitted to terminate you for poor performance, misconduct, lack of business or some other substantial reason, but you still have some rights. The extent of these will depend on your employment contract, how long you’ve been employed, the reason for the termination and how it was put into effect. The law only gives you a limited time period in which to assert your rights, so don’t delay getting to grips with the situation.
An employer should not dismiss you in a manner which is inconsistent with the terms of your contract. This is called "wrongful dismissal" and gives you a legal claim against your employer for breach of contract. These rights take effect after you have been employed two years.
An employer should also not dismiss you unfairly, i.e., if your performance is good, you have not committed any misconduct, your role is still required and there is no other substantial reason for it. Dismissal without one of these reasons is called "unfair dismissal". These rights take effect after you have been employed two years.
It is never legal to fire you for a reason that is discriminatory, for example because you are a woman, are gay or from an ethnic minority. These rights take effect as soon as you are employed.
When is it wrong or unfair for an employer to dismiss me?
You can also bring a claim for unfair dismissal if the procedure used was unfair: for instance, if the company did not adhere to its own policies and practices or you were treated differently from others.
What if my employer has a fair reason for dismissing me but does not follow the usual procedure?
What constitutes poor performance is normally defined in staff handbooks and, except in the most serious cases of poor performance, your employer is required to give you one or more verbal or written notices that your performance is lacking before sacking you so you have an opportunity to improve. If you have been summarily dismissed for what you consider to be minor performance issues, you should consult your staff handbook to see if your employer is in breach of its performance or disciplinary policies. If you think the reasons are a pretext, you may have a claim for unfair, wrongful or discriminatory dismissal.
My employer fired me on the spot for poor performance. Is this allowed?
Unless you have committed gross misconduct, your employer should always give you notice of termination and allow you to work out your notice period or pay you the amount you would have earned during this period instead (this is called "pay in lieu of notice" or "PILON"). Your notice period will usually be stated in your terms or contract of employment. If it is not, then the law requires that you be given a minimum notice period of one week for each full continuous year you have worked for your employer.
Is my employer allowed to dismiss me without giving notice?
I have just been dismissed from my new job, can I bring an unfair dismissal claim?
Unlike a claim for discriminatory dismissal, which can arise at any time, the law only allows you to bring an unfair dismissal claim if you have worked continuously for two years with this employer (in any role) before the date of the dismissal.
Where the reason for dismissal is discrimination, you can bring a claim as soon as you have been discriminated against, regardless of how long you have been in post, and even if you do not get the job because the discrimination happened during the recruitment process. The two-year qualifying period also does not apply to whistleblowers or when the termination relates to pregnancy.
You may be able to bring a claim for constructive dismissal, which will allow you similar remedies to those available for unfair dismissal. Your resignation will be treated as constructive dismissal if you can show that:
- Your employer's conduct breached your contract of employment in a fundamental way
- You resigned because of that
- You made it clear that you did not accept the breach, by resigning immediately or very soon.
Examples of a fundamental breach of contract that would justify your resignation include: an employer unilaterally altering or not paying your salary or removing a significant benefit, like a company car; an employer punching you in the face (it would be assault and battery also of course!); or suspending you without reason. Other conduct short of these extreme examples might also be enough to warrant your resignation, but it can be hard to persuade a tribunal of this. If in doubt, you should seek advice first but quickly so that you are not deemed to have accepted your employer's breach by not resigning soon enough.
My employer treated me so badly I had no choice but to resign. Can I bring a claim for being forced from my job?
You are entitled to a basic award and a compensatory award.
The Basic Award is calculated by taking the employee's age, years of service and average weekly pay to arrive at a figure. However (as of 6 April 2016) the weekly pay figure is limited to a maximum of £479 per week and the maximum number of years that will be considered is 20. However, the weekly amount depends on your age while in employment:
- For each year of service below the age of 22, you will receive half a week's pay (capped at half of £479) for each year.2. For each year of service when aged 22-40, the week's pay (capped at £479) is multiplied by 1.
- For each year of service when aged 41 or above, the weekly pay (capped at £479) is multiplied by 1.5.
Therefore the absolute maximum Basic Award is: 20 years at £479 x 1.5 = £14,370.
The Compensatory Award is intended to compensate you for lost wages and benefits-in-kind, as well as future earnings and other losses caused by your dismissal. It is currently capped at £78,962 or one year's gross pay, whichever is lower.
There are no limits for damages in claims of discrimination.
What are my remedies if I win a claim for actual or constructive unfair dismissal?
See our FAQ on how to make an employment tribunal claim here.
How do I bring a claim?