Unfair Dismissal Barristers

The right not to be unfairly dismissed comes from section 94 of the Employment Rights Act 1996. Once a dismissal is established, the employer has to show that the reason for it was one of the potentially fair reasons in section 98: capability, conduct, redundancy, a statutory restriction on continuing the employment, or "some other substantial reason". The tribunal then asks whether dismissing for that reason was reasonable in all the circumstances, applying the "range of reasonable responses" test. The question is not whether the judge would have dismissed you, but whether a reasonable employer could have done so.

Procedure carries real weight. In misconduct cases the tribunal looks at whether the employer genuinely believed you were guilty, had reasonable grounds for that belief and had carried out a reasonable investigation, the test from British Home Stores v Burchell. The ACAS Code of Practice on Disciplinary and Grievance Procedures sets the baseline: you should be told the allegations in writing, see the evidence, be invited to a meeting, be allowed a companion and be offered an appeal. Where an employer unreasonably ignores the Code, the tribunal can increase compensation by up to 25%. Equally, a dismissal can be procedurally flawed yet compensation can be reduced if a fair process would probably have led to the same result (a "Polkey" reduction), or if your own conduct contributed to it.

Ordinary unfair dismissal currently requires two years' continuous employment. The Employment Rights Act 2025 reduces that to six months for dismissals taking effect from 1 January 2027, and is also set to remove the cap on the compensatory award from that date. Some reasons are automatically unfair and need no qualifying service at all, including pregnancy and family leave, whistleblowing, asserting a statutory right and certain health and safety activities. Because the rules depend on the date your employment ended, the first thing a Barrister will check is your effective date of termination.

Before claiming you must notify ACAS for early conciliation. For dismissals before 1 October 2026 the limit is three months less one day from the effective date of termination; for dismissals on or after that date it is six months, again less one day in practice. Early conciliation pauses the clock, and you always have at least one month from the certificate to submit the ET1. A Direct Access Barrister can assess your claim, draft the ET1 grounds and schedule of loss, and represent you at hearings. You submit the claim and handle tribunal correspondence yourself. If you resigned because of your employer's conduct, see our separate page on constructive dismissal.

1. 1

   Fix the Dates

   Your Barrister identifies the effective date of termination, which decides your qualifying service, the time limit and which compensation rules apply. Where notice was paid in lieu, this date can differ from your last working day.

2. 2

   Internal Appeal

   If the employer offers an appeal, it is usually wise to use it. Your Barrister can help you write focused grounds of appeal, which also creates a record the tribunal will later read. Appealing does not stop the tribunal time limit running.

3. 3

   ACAS and the ET1

   You notify ACAS, which contacts the employer about settlement. If none is reached you receive a certificate number. Your Barrister drafts the grounds of complaint and you submit the ET1 before the extended deadline.

4. 4

   The Employer's ET3

   The employer normally has 28 days from the date the tribunal sends it the claim to file its response. Your Barrister reviews the reason it gives for dismissal and the procedure it says it followed, and advises on any weaknesses in its account.

5. 5

   Disclosure and Statements

   Following the tribunal's directions, both sides disclose documents such as investigation notes and disciplinary minutes, then exchange witness statements. Your schedule of loss is updated as your earnings change.

6. 6

   Final Hearing

   Your Barrister questions the dismissing and appeal officers on the reasons and process, then makes submissions. If you win, remedy may be decided the same day or at a later hearing.