Eligibility to claim unfair dismissal

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.

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. The law distinguishes between the rights given to different types of staff you can employ. See the section on Employees, workers and the self-employed, for more information. However, it can be difficult to distinguish an employee from a worker, and you should seek legal advice if you're unsure.

Meaning of 'dismissal'

An employee must be dismissed within the meaning of the law. This will usually be due to one or more of the following:

• The employee's capability or conduct
• Preventing a breach of a legal requirement
• Redundancy
• Some other substantial reason that justifies it.

An employee won't be dismissed in any of the following situations:

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

Dismissal can occur if:

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

Termination by the employer

Your employee is treated as dismissed if you end their contract of employment for one of the above-mentioned reasons, with or without giving notice. Usually, this happens where you give notice to end the contract according to 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).

A fixed term expires and isn't renewed

Your employee is treated as being dismissed in this case. 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.

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. Examples of actions against an employee that could result in constructive dismissal, include:

• Reducing their pay without their agreement
• Lowering their status or changing any of their employment conditions without their agreement or the proper procedure
• Discriminating against them or deliberately treating them unfairly compared to others (treating them detrimentally)
• Consistently undermining their authority
• Denying them rights under their contract
• Attempting to influence them to resign
• Allowing them to be discriminated against (including harassed or victimised) by other employees or members of the public while at work.

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

Although the breach must 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.

Length of service

Usually, 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.

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.

Note: it's expected that from 1 January 2027, the requirement for 2 years' service will reduce to 6 months for employees in England, Wales and Scotland. See our section on the Employment Rights Act 2025 for more information.

What does 'continuous service' mean?

In simple terms, this means there can't be a gap in the employment. For example, if an employee works for an employer for 6 months, then leaves for 3 months before returning for another 6 months, the 2 periods of 6 months are not considered to be 12 months' continuous service.

However, some types of gap still count towards continuous employment. For example, absence due to:

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

Industrial action does not break the continuity of employment, but days on which an employee is on strike or locked out by the employer don't count when calculating the length of the employment.

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 previous employment contract's 'effective date of termination'.

If there is a change in employer, continuity will usually be broken – but not always. 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 within a business partnership – again, there is no break in continuity.

Automatically unfair dismissals

Some reasons for dismissal are classed as automatically unfair, meaning that - in most cases - an employee won't need 2 years' service to start a claim. These include dismissals for:

• A reason connected with pregnancy or childbirth
• Taking or seeking to take maternity leave, paternity leave, statutory adoption leave, parental leave, shared parental leave, parental bereavement leave, or neonatal care leave
• Taking or seeking time off for attending antenatal or adoption appointments
• Taking or seeking time off for a dependant
• A reason connected with rights under the Working Time Regulations, such as seeking time off for rest periods, breaks and annual leave
• A reason related to the national minimum wage, such as requesting to be paid a minimum wage under minimum wage regulations
• A health and safety reason, e.g. acting as a H&S representative, reasonably raising H&S concerns or taking action to prevent danger.
• Taking or seeking time off for jury service (or some other public duty)
• Redundancy, in situations where the employee is pregnant or on (or recently returned from) maternity leave, adoption leave or shared parental leave and you failed to offer them suitable alternative employment (over other employees who were also at risk).
• Making a protected disclosure (known as whistleblowing)
• A reason related to the right to be accompanied by a trade union representative or colleague to a meeting to a grievance, disciplinary or dismissal meeting (or any resulting appeal hearing)
• Asserting a statutory (legal) right under the Employment Rights Act, e.g. requesting written employment terms or an itemised pay slip, applying for flexible working or claiming repayment following an unlawful deduction from wages
• Rights given under the Transfer of Undertaking Act (TUPE), e.g. being dismissed on grounds related to the TUPE transfer
• Being an employee representative in TUPE or collective redundancy situations
• Refusing to work on Sundays (this only applies to certain shop/betting workers)
• A reason related to being a part-time or fixed-term employee
• Taking time off under the statutory right for study and training requests
• Reasons connected to breach of an exclusivity term in a zero-hours contract, or in an employment contract that's classed as a low-hours contract
• Reasons connected with being an agency worker
• Reasons connected with duties as an employee representative under the pensions auto-enrolment scheme, including taking or seeking reasonable paid time off for duties
• Refusing to accept an offer to become an employee shareholder
• Reasons connected with the being in the Reserve forces
• Redundancy on some of the grounds listed above.

Note: In England, Wales and Scotland, it's expected that from January 2027 practices known as fire and rehire and fire and replace will become automatically unfair unless the employer is in financial difficulty. See our section on the Employment Rights Act 2025 for more information.

Time limits

An employee claiming unfair dismissal has 3 months to make that claim, starting with (and including) the effective date of termination. The 3-month period will be affected if you and your employee use the Acas Early Conciliation service.

Note: In England, Wales and Scotland, it's expected that from October 2026 this 3-month period will be extended to 6 months. See our section on the Employment Rights Act 2025 for more information.

Effective date of termination

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), it's the date on which that notice expires.
• If the contract is terminated without notice (including where a payment in lieu of notice is paid), it's the date on which the termination takes effect.
• If a fixed-term contract expires without renewal, it's 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 still pay them for the notice period, the effective date of termination is still the date of your employee's last day at work.

In cases of constructive dismissal, the effective date of termination is the date your employee stopped working.