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Check if your dismissal is unfair

This advice applies to Scotland

Being sacked from your job can come as a huge shock and it often feels unfair. The legal term for being sacked is ‘dismissal’.

Your employer is allowed to dismiss people, but if they do it unfairly you can challenge your dismissal.

To find out if your dismissal is unfair, you’ll need to check:

  • what your ‘employment status’ is - your rights depend on whether you’re an employee or not
  • how long you’ve worked for your employer - you can usually only challenge a dismissal if you've worked there 2 years or more
  • whether the law says the reason for your dismissal is unfair

You'll need to check quickly - you’ve got 3 months less a day from your last day of employment to start taking action for an unfair dismissal.

Contact your nearest Citizens Advice if you need help at any point.

To check if you can do anything to challenge your dismissal, follow these 4 steps:

1. Check you’ve actually been dismissed

You can only challenge a dismissal if you can show it actually happened. You’ve been dismissed if your employer has done any of the following:

  • ended your contract of employment, with or without notice
  • refused to renew your fixed-term contract
  • made you redundant, including voluntary redundancy
  • dismissed you for going on strike
  • stopped you from coming back to work after maternity leave

You’ll need evidence you were dismissed, such as an official termination letter, or emails and text messages from your employer.

You haven’t been dismissed if you’ve:

  • been suspended
  • resigned by choice

Contact your nearest Citizens Advice for help if you resigned because either:

  • you were pressured to hand in your notice
  • your employer did something that was a serious breach of your contract and you didn’t want to accept it

Either of these could count as a type of dismissal called ‘constructive dismissal’.

2. Check your ‘employment status’

Your ‘employment status’ means whether you’re an employee, a worker or self-employed.

You only have the right to claim unfair dismissal if you’re an employee - this includes part-time and fixed-term employees.

Unfortunately, you don't have any rights to challenge your dismissal if your employment status is:

  • self-employed
  • an agency worker or classed as a ‘worker’
  • a police officer or in the armed forces
  • a registered dock worker
  • working overseas or for a foreign government
  • a share fisherperson

You can check your employment status on GOV.UK - if it seems like you're an employee, then you should have unfair dismissal rights.

Sometimes it’s not clear if you’re an employee. Your employer might say you’re self-employed or a ‘worker’ so they don’t have to give you all your rights at work.

Contact your nearest Citizens Advice if you need help or you think you’re not getting all your rights.

If you don’t have dismissal rights, you can still ask the organisation you work for to reconsider your dismissal.

If you decide not to ask for your job back, the best thing to do is to prepare for what happens next and find another job.

3. Check you’ve been dismissed for a reason that’s definitely unfair

Your employer should tell you why they’re dismissing you. If you’re pregnant or have worked there for at least 2 years, you’ve got the right to get a written explanation - this should be a letter or email.

The law says it’s always unfair if you’re dismissed because of:

  • an ‘automatically unfair’ reason
  • discrimination

If your dismissal is because of one or both of these reasons, you can challenge it.

If you don’t have a written explanation 

Ask your employer for a written explanation as soon as possible if they haven’t given you one. It’s best to ask in writing so you can prove when you asked.

Your employer has to send you a written explanation within 2 weeks of you asking. It might help to tell them this when you ask - not all employers know about this rule.

You can ask for an explanation for your dismissal even if you don't have the right to one - your employer doesn't have to say yes.

If you don’t understand the written explanation

Tell your employer if you can’t understand your written explanation - for example if:

  • the reasons are written in legal language
  • the explanation refers to another document, such as a contract, but doesn’t include a copy of it

They should give you enough information to help you understand your written explanation. They don’t have to include all the details or all their evidence.

If you think the written explanation is untrue or unfair you might have been unfairly dismissed.

If your employer won’t give you a written explanation

Ask your employer why they haven’t given you a written explanation if they:

  • don’t give it you within 2 weeks of you asking
  • refuse to give it to you

Contact your nearest Citizens Advice if you’re not getting anywhere.

Check if it’s an ‘automatically unfair’ reason

It’s always ‘automatically unfair’ if you’re dismissed because you:

  • are pregnant or on maternity leave
  • have asked for your legal rights at work, eg to be paid minimum wage
  • took action about a health and safety issue
  • work in a shop or a betting shop and refused to work on a Sunday
  • are a trade union member and took part in trade union activities including official industrial action or you were acting as an employee representative
  • have reported your employer for wrongdoing, which is called whistleblowing

If you’ve been unfairly dismissed in the last 7 days 

You might be able to get your employer to keep paying your wages if you've been unfairly dismissed for certain reasons, like:

  • health and safety 

  • whistleblowing 

You should talk to an adviser for help.

If you’ll have worked for your employer for at least 2 years when your job ends, it’s also automatically unfair if you’re dismissed because:

  • the business was transferred to another employer
  • you didn’t declare a spent conviction

Your employer can still dismiss you if you’re in any of these categories - but it can’t be the reason you’re dismissed.

Check if you’ve been discriminated against

You can also challenge your dismissal if it’s because your employer has discriminated against you.

It might be discrimination if you think you were dismissed because you’re:

  • pregnant or on maternity leave
  • from a particular race, ethnicity or country
  • married or in a civil partnership
  • a man or a woman
  • disabled
  • lesbian, gay, bisexual 
  • transgender
  • have a particular religion or set of beliefs
  • older or younger than the people you work with

Your employer can still dismiss you if you’re in any of these categories - but it can’t be the reason you’re dismissed. 

In practice, your employer may not always give you an honest reason for your dismissal. It’s a good idea to get help from your nearest Citizens Advice if you feel the real reason could be automatically unfair, or discrimination. You can check if your problem at work is discrimination.

Checking for discrimination

No matter what reason the employer has given for dismissing your client, you should check whether they’ve been discriminated against. A client won’t necessarily realise if this has happened.

There’s no maximum limit to the amount of compensation your client could get if they make a successful claim for discrimination to an employment tribunal.

If your client thinks they’ve been discriminated against because of a specific event, such as racial abuse, check when this happened. The closer to the date of the dismissal, the more likely it is this will show discrimination.

Discrimination is a complex area and you should get help from a specialist. Advisers can contact Peninsula whose details are on the bureau zone of the CAS website.

Read more about dealing with a discrimination case.

If you think you were sacked because of an automatically unfair reason or discrimination, you can challenge your dismissal - it doesn't matter how long you've worked there for.

If you were sacked for a different reason and you’ve worked for your employer for less than 2 years, you don’t have the right to challenge it. This might feel unfair, but the best thing you can do is plan for what happens after you’ve been dismissed.

Common issues

If you’re on maternity leave

Lots of people think you can’t be dismissed while you’re on maternity leave.

In fact, your employer can dismiss you on maternity leave, but it can’t be the reason for your dismissal.

You have the right to return to your job, unless:

  • you’re made redundant and there’s no suitable alternative work for you
  • you’ve been on leave longer than 6 months and it isn’t possible to return to your old job - in this situation your employer must offer you suitable alternative work
  • you’ve breached your contract - for example by working for another organisation as an employee while getting maternity pay from your current employer

You should check whether your redundancy is genuine and fair if you’re being made redundant while on maternity leave.

If you’re dismissed while you’re on maternity leave or soon after you return to work, ask your employer as soon as possible why you’re being dismissed. You should also contact your nearest Citizens Advice for help.

If you’re on probation

Your first few weeks or months in a job are often called being ‘on probation’. Being on probation doesn’t give you any specific legal rights.

You can be dismissed with 1 week’s notice while you’re on probation - or longer if your contract says you’re entitled to more notice.

Check your contract to see what it says about your probation period and when you can be dismissed.

If your employer is dismissing you because they’re not happy with your work, ask them if they’ll extend your probation period or give you extra training so you can do your job better. They don’t have to agree though, and there’s nothing to stop them dismissing you. It could be time to look for another job.

If you’re on a fixed-term contract

You’re on a fixed-term contract if your job will finish on a set date or when a certain project is finished.

You can be dismissed before the end of a fixed-term contract if your contract says you can. You’ll usually get 1 week’s notice, unless you’ve worked for your employer for 2 years or your contract says you’re entitled to more.

You can be dismissed at the end of the fixed-term contract as long as your employer does it fairly.

Contact your nearest Citizens Advice if your employer is trying to dismiss you before the end of your contract without the proper notice period.

Read more about what you can do after you’ve been dismissed.

4. Check if you’ve been dismissed for a reason that might be fair

If you’ll have worked for your employer for at least 2 years when your job ends, your dismissal must be for a fair reason.

There are 5 legal reasons for dismissal that are ‘potentially fair’. This means it might be fair if you were dismissed because:

  • you’re not capable of doing your job - for example because your performance is poor or you’ve been off sick a lot
  • you’ve behaved badly - which is called misconduct or, for things like violence or criminal activity, gross misconduct
  • there’s a legal reason why your employer can’t keep you on - usually this means you’ve lost the right to work in the UK
  • your role is redundant - you’ll need to look at different rules to check if it’s fair
  • of ‘some other substantial reason’ - this isn’t set out in law, but it means your employer has to show they had a good reason for dismissing you

It isn’t black and white - whether your dismissal is actually unfair will depend on all the details of your individual case, for example:

  • whether your employer has treated you in the same way as other employees in similar situations
  • whether your employer has tried to help you overcome any issues, for example by giving you more training to help your performance
  • if your employer has followed a fair procedure to investigate any problems and to choose whether to dismiss you

You should contact your nearest Citizens Advice to assess whether you might have a claim.

If you’re dismissed for gross misconduct

If you’re dismissed for gross misconduct, you don’t have the right to a notice period. However, your employer should investigate the misconduct before deciding to dismiss you.

It’s not unusual for an employer to dismiss someone for gross misconduct to try and get out of giving notice and paying notice pay. 

Contact your nearest Citizens Advice for help straight away if you think you’ve been unfairly dismissed for gross misconduct. You might be able to claim for breach of contract (called ‘wrongful dismissal’), which is different to claiming unfair dismissal. You should act quickly, as any benefits you’re getting could be sanctioned if you’ve been sacked for gross misconduct.

Extra help

If you have a trade union at work, you could also contact them. Your union can help you work out if you’ve got a claim, and support you through the process, for example by going to meetings with you or negotiating on your behalf.

Regardless of what you want to do next, it's a good idea to think about preparing for what happens after you've been dismissed.

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