How to Prove Unfair Dismissal at Tribunal

Do You Qualify for an Unfair Dismissal Claim?

Under section 108 of the Employment Rights Act 1996, you generally qualify for an unfair dismissal claim only after two years of continuous employment with the same employer. This protects businesses from short‑term claims but ensures longer‑serving staff get protection. Continuous service breaks only for specific reasons like maternity leave interruptions, which do not count against you.

Exceptions exist where dismissal is automatically unfair regardless of service length, such as for whistleblowing (section 103A), health and safety activities (section 100), or asserting statutory rights like minimum wage (section 104). Discrimination under the Equality Act 2010 also bypasses the two‑year rule. Check your contract start date against the effective date of termination (EDT), usually your last day or notice expiry.

If unsure about your service, review payslips, P60s or contract for proof. Self‑representing claimants often overlook this first hurdle, leading to early rejection.

For more on Learn the ACAS code disciplinary grievance procedures to handle workplace disputes effectively. Essential for unfair dismissal claims and employment tribunals in England and Wales. Protect your worker rights UK with this comprehensive guide, see here.

The Legal Test: What Makes a Dismissal Unfair?

Section 98 of the Employment Rights Act 1996 sets the test. First, your employer must prove the dismissal reason falls into a potentially fair category: capability or qualifications, conduct, redundancy, legal bar to work, or some other substantial reason (SOSR). Common examples include poor performance (capability) or theft (conduct).

Second, the tribunal decides if the employer acted reasonably in treating that reason as sufficient for dismissal. This includes investigating fully, allowing you to respond, and considering alternatives like warnings. Tribunals balance employer rights with employee protections, often citing case law like British Home Stores v Burchell for investigation standards. To prove unfair dismissal, show gaps in their reason (e.g., no evidence of misconduct) or procedural failures (e.g., no hearing). Burden shifts: you prove dismissal happened, they prove reason and fairness.

• Fair reasons: Conduct, capability, redundancy, SOSR.
• Unfair if: Wrong reason, poor investigation, ignored mitigation.

Document Everything

Gathering Evidence to Prove Unfair Dismissal

Evidence unfair dismissal wins cases: start with your dismissal letter stating the reason, then contrast it with facts. For conduct claims, gather emails showing good performance or lack of prior warnings. Witness statements from colleagues proving no misconduct are gold.

Performance records like appraisals showing positives undermine capability dismissals. Redundancy evidence might include selection criteria not applied fairly or no consultation. Keep timesheets, contracts and payslips for context.

Digital evidence like Slack messages or CCTV (if accessible) strengthens proof. Organise chronologically in a bundle for tribunal, numbering pages. Tribunals prefer originals over copies where possible.

• Emails and letters proving inconsistencies.
• Witness statements (signed, dated).
• Your diary notes of events.
• HR policies breached.

Disclosure Rules

Following the ACAS Code and Dismissal Procedures

The ACAS Code requires written allegations, investigation meetings, chance to appeal and impartial decision‑makers. Tribunals consider if employers unreasonably deviated, making dismissal unfair even with a fair reason. For example, skipping a hearing or biased investigator breaches fairness.

Dismissal procedures vary by size but must be fair: notify in writing, allow representation, provide evidence beforehand. Prove breach by showing no invite letter or rushed process.

Compliance shows reasonableness; non‑compliance (e.g., no appeal offered) helps you prove unfair dismissal. Tribunals uplift awards up to 25% for code breaches.

1. Employer investigates fully.
2. Disciplinary hearing with notice.
3. Decision and right to appeal.
4. Appeal hearing.

Code Uplift

Time Limits, ACAS Early Conciliation and Filing

Under section 111 ERA 1996, present your claim within 3 months from your effective date of termination (EDT). ACAS early conciliation extends this: time stops on Day A (contact ACAS) to Day B (certificate), then restarts.

Contact ACAS first via their portal for a certificate (usually 6 weeks). Without it, tribunals reject claims. Calculate carefully: if EDT 1 June, deadline ~1 September minus EC period.

File ET1 form online at gov.uk, detailing reason disputed and remedy sought (compensation, reinstatement). Fee remission available if low income.

1. Contact ACAS within 3 months.
2. Get EC certificate.
3. File ET1 same day or before adjusted deadline.
4. Prepare bundle.

Use EC Calculator

Presenting Your Case at the Employment Tribunal

At preliminary hearing, agree issues and timetable. Full hearing: open with your case, cross‑examine employer witnesses, close submissions. Judge decides on balance of probabilities.

Self‑represent: use tribunal bundle (your docs first), sworn witness statements instead of speeches. Answer questions honestly, stick to facts.

If win, basic award (like redundancy pay) plus compensatory (losses up to £115,115 or 52 weeks). Caps apply: £115,115 or 52 weeks pay (2024 figures). Polkey reduction if procedure flaw but likely dismissal anyway.

Practice

For more on Learn how to prepare evidence for an employment tribunal, including gathering documentation, disclosure, witness statements, and creating a case bundle. Essential steps for self‑representing claimants, see here.

Next Steps After Reading This Guide

Proving unfair dismissal requires qualifying service, challenging the reason or procedure with evidence unfair dismissal, and timely action via ACAS early conciliation. Armed with this guide, self‑representers can build strong cases against flawed dismissal procedures.

Tribunals favour prepared claimants following ACAS code insights. Success rates hover around 50% for heard claims; your preparation tips the balance.

Start gathering documents today and consider free ACAS advice.

For more on The burden of proof employment tribunal follows the balance of probabilities. Learn who bears it (claimant vs respondent), when it shifts, and tips for unfair dismissal and discrimination cases, see here.