Eligibility criteria for unfair dismissal claims

Employees only

Only employees can claim for unfair dismissal or receive a statutory redundancy payment, not other types of workers that you may employ, such as casual (or zero-hours) workers, paid interns, and apprentices.

The law distinguishes the employment rights given to employees, workers, and self-employed contractors.

An employee is defined as an individual who works under a contract of employment. They have more employment law rights than workers and self-employed individuals.

However, it's not always easy to distinguish an employee from a worker, and you should seek legal advice if you're unsure whether these rights apply to a member of your staff.

The meaning of dismissal

To claim unfair dismissal, an employee must establish that they've been dismissed within the meaning of the law.

They won't have been dismissed if they:

• resign (unless it's a case of constructive dismissal - see below);
• leave by mutual agreement; or
• the employment contract is frustrated (i.e. becomes impossible to perform due to an event that's not the fault of the employer or the employee).

Dismissal can arise in one of three ways:

• The contract is terminated by the employer
• A fixed term expires without being renewed
• The employee is constructively dismissed

1. Termination by the employer

Your employee is treated as dismissed if you end their contract of employment with or without giving notice. The most common method is where you give notice to end it, in line with its terms.

In some situations (e.g. misconduct), you could end the contract without notice by dismissing your employee immediately. In this case, even though the dismissal has been caused by their conduct, it's your action in treating the contract as having come to an end that terminates the contract, and this makes it a dismissal.

If you offer an employee a choice to either resign or be dismissed and they choose to resign, this is still treated as a dismissal (because you have forced their resignation).

2. A fixed term expires and isn't renewed

In this situation, your employee is treated as being dismissed. Like other forms of dismissal, the non-renewal must be based on:

• the employee's capability or conduct;
• preventing a breach of a legal requirement;
• redundancy; or
• some other substantial reason (SOSR) that justifies it.

In most situations you can rely on SOSR, e.g. if the fixed-term contract was given to cover another employee's absence on maternity leave and they're now returning to work.

3. Constructive dismissal

This means the employer's conduct has fundamentally (i.e. significantly) breached the employment contract. This includes breaching the duty of trust and confidence that's implied in every employment contract.

An employee who has been constructively dismissed can claim unfair dismissal.

Although the breach has to be serious, it's possible that a tribunal could look at the cumulative effects of your actions. The final act may not in itself be a fundamental breach of contract, but could be the 'last straw' of a series of breaches that amount to constructive dismissal.

Employees wishing to rely on constructive dismissal must leave their employment within a reasonable time following the last breach to avoid being taken as having 'accepted' the breach.

Some examples of actions against an employee that could amount to constructive dismissal are listed below:

• Reducing their pay without their agreement
• Lowering their status or changing any of their employment conditions without their agreement or the proper procedure
• Treating them in a discriminatory manner
• Consistently undermining their authority
• Denying them any of their rights under their contract
• Being deliberately unfair to them in any way
• Attempting to influence them to resign
• Allowing them to be harassed or victimised by other employees or members of the public while at work

Length of service

Generally, an employee must have 2 years' continuous service before they can bring a claim for unfair dismissal. It's 1 year for employees in Northern Ireland.

Note that, in practice, an employee will actually qualify once they have 103 weeks' continuous service (or 51 weeks for employees in Northern Ireland). This is because they are entitled by law to receive at least 1 week's notice when dismissed.

However, some reasons for dismissal are classed as automatically unfair, meaning an employee doesn't need any particular length of service. Other reasons, though not automatically unfair, also don't need a minimum length of service.

This list of reasons where there's no length of service requirement is below:

• Dismissal due to political opinions or affiliations
• Discrimination on the grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, sex, sexual orientation and/or religion or belief (England, Wales and Scotland) or religious belief or political opinion (Northern Ireland)
• Dismissal or suffering a detriment due to pregnancy or a reason relating to maternity leave
• Dismissal or suffering a detriment due to taking (or seeking to take) time off for parental leave, paternity leave, adoption leave or time off for dependants
• Dismissal or suffering a detriment due to acting as an employee representative at grievance/disciplinary hearings and/or appeals
• Dismissal or suffering a detriment due to trade union membership or participating in legitimate trade union activities
• Dismissal or suffering a detriment due to taking (or seeking to take) time off for jury service (or some other public duty), antenatal care, to accompany a pregnant woman to an antenatal appointment, or looking for work/arranging training prior to being made redundant
• Dismissal or suffering a detriment due to making a protected disclosure that's in the public interest (generally known as whistleblowing)
• Dismissal or suffering a detriment due to particular circumstances relating to health and safety
• Dismissal or suffering a detriment due to exercising (or seeking to exercise) rights under the Working Time Regulations – e.g. rest periods, breaks and annual leave
• Dismissal or suffering a detriment due to exercising (or seeking to exercise) rights under minimum wage regulations
• Dismissal or suffering a detriment due to claiming a statutory right
• Dismissal or suffering a detriment due to exercising (or seeking to exercise) rights under part-time or fixed-term employee regulations
• Dismissal or suffering a detriment due to refusing to work on Sundays (certain shop/betting workers only)
• Dismissal or suffering a detriment due to being a trustee of an occupational scheme
• Dismissal or suffering a detriment due to failing to disclose a spent conviction
• Dismissal or suffering a detriment due to claiming repayment following an unlawful deduction from wages
• Dismissal or suffering a detriment due to requesting an itemised pay statement or written terms and conditions of employment, or written statement of reasons for dismissal
• Dismissal or suffering a detriment due to exercising (or seeking to exercise) a right to apply for flexible working
• Claiming damages for a breach of the terms of an employment contract

Continuous employment

The period of employment must be continuous. If the employment period is broken so that it is not continuous with a later period, a new period of employment will start after the break, starting again at week one. The old period cannot be added to the new.

If there isn't an employment contract

Generally, weeks during which an employee is not employed under a contract of employment do not count as part of their continuous employment. However, such weeks should count if the employee is absent due to:

• sickness or injury up to a maximum of 26 weeks;
• being on some form of statutory family leave (e.g. maternity leave);
• being on annual leave (i.e. holiday);
• a temporary stoppage of work; or
• circumstances where, by arrangement or custom, they're regarded as continuously in employment.

Industrial action

Industrial action does not break continuity of employment, but days during which an employee may be on strike or locked out by the employer do not count when calculating the length of employment.

Redundancy

If an employee is made redundant but will start another job with the same employer (under a new employment contract), the continuity of their employment will be preserved as long as they start their new job within 4 weeks of the effective date of termination of their previous employment contract.

Change of employer

For employment to be continuous, the employee must be with the same employer. If there is a change in employer, continuity will be broken. However, a change in job with the same employer will not break it.

There are circumstances, however, where continuity of employment will be preserved despite a change of employer. For example, where an employer has died, their personal representatives (e.g. executors) will take control of the deceased employer's estate including the business. If the personal representatives agree to continue to employ the employee, continuity of employment is preserved. Another example would be where there is a change of partners – again, there is no break in continuity.

Time limits

An employee claiming unfair dismissal has 3 months to make that claim, starting with (and including) the effective date of termination.

Note that this 3-month period will be affected if you and your employee enter into Early Conciliation.

The effective date of termination is defined as one of the following:

• If the contract is terminated by notice (including 'garden leave', i.e. where the employee isn't required to work their notice period): the date on which that notice expires.
• If the contract is terminated without notice (including where a payment in lieu of notice is paid): the date on which the termination takes effect.
• If a fixed-term contract expires without renewal: the date on which the term expires.

In most cases, the effective date of termination is simply the last day on which your employee worked for you.

If you dismiss an employee without notice but instead you give wages, the effective date of termination is still the date of your employee's last day of work. In the case of constructive dismissal, the effective date of termination is the date of your employee's departure.