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What is unfair dismissal and who can claim this?

Generally, if you have completed two years’ service with your employer, you have acquired the right not to be unfairly dismissed.

Your dismissal will be unfair unless:

  • Your employer can show that the reason for your dismissal was for one of five reasons:
    • Capability (Poor performance or ill health) or Qualifications
    • Conduct
    • Redundancy
    • Statutory Restriction (for example the loss of a driving licence where you must drive to do the job)
    • ‘Some Other Substantial Reason’ – designed to catch other potentially fair situations that don’t fall into any of the above; and
  • Your employer acted reasonably in treating that reason as sufficient to dismiss you. If the issue is about your conduct or performance, an Employment Tribunal must take into account the Acas Code of Practice on Disciplinary and Grievance Procedures when deciding whether your employer acted ‘reasonably’.

However, dismissals for some reasons are deemed ‘automatically unfair’ and in most such cases you don’t need to have two years’ service, so you have protection from day one of employment. These reasons include dismissals for reasons linked to pregnancy and childbirth, health and safety activities and whistleblowing and discrimination on the grounds of disability, sex, race, religion or belief and sexual orientation.

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