Employment Tribunals

Employees with at least two years of continuous service are generally protected against unfair dismissal. However, certain dismissals, like those involving whistleblowing or health and safety, may not require the two-year service period for protection.

If an employee succeeds in a claim for unfair dismissal, they may claim compensation for loss of earnings or request reinstatement or reengagement.

The potentially fair reasons for dismissal include conduct, performance or capability, redundancy, legal requirements or statutory restrictions, or some other substantial reason (SOSR). However, employers must follow a fair and reasonable process prior to dismissing an employee.

Automatic unfair dismissal is a specific category of dismissal that is deemed to be automatically unfair. To be able to claim automatic unfair dismissal an employee does not need a minimum length of service. Automatically unfair reasons for a dismissal include, but are not limited to, dismissals:

• related to whistleblowing;
• related to family reasons (i.e. in connection with childbirth, statutory maternity/paternity leave);
• for a health and safety reason;
• for asserting a statutory legal right;
• for acting as an employee or trade union representative; and
• for being a part-time or term-time employee.

There are several types of discrimination claims. These include:

• direct discrimination (treating someone less favourably because of a protected characteristic);
• indirect discrimination (applying a provision, criterion or practice that disproportionately affects a certain group);
• discrimination arising from a disability (treating someone unfavourably because of something arisign in consequence of their disability);
• harassment (unwanted conduct relating to a particular characteristic);
• victimisation (treating someone less favourably because they have done a protected act or because it’s believed that they have done, or will do, a protected act); and
• failure to make reasonable adjustments for disabled employees.

The protected characteristics under the Equality Act 2010 are:

• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex;
• sexual orientation; and
• age.

If an employee is successful in bringing a claim the employment tribunal could make a number of remedies. These include:

• compensation for loss of earnings;
• injury to feelings;
• reinstatement or reengagement if employment was terminated; and
• recommendations, such as providing training or implementing adjustments.

There is no overall cap on the compensation in a discrimination claim and therefore they can potentially be of high value.

A breach of contract claim can be pursued either in the civil courts or the employment tribunal.

Employers cannot bring a free‑standing breach of contract claim against a former employee in the Employment Tribunal. Instead, an employer may only pursue a breach of contract claim as a counterclaim, and only where the employee has first brought a Tribunal claim against them.

An employee may bring a breach of contract claim in the Tribunal only after their employment has ended, and the claim must be presented within three months less one day of the alleged breach. There are also other considerations when deciding whether to proceed in the Tribunal or the civil courts, including the differing cost risks in each forum.

Breach of contract claims brought in the Employment Tribunal are subject to a £25,000 statutory cap. By contrast, claims issued in the civil courts are not subject to any financial limit, carry a six‑year limitation period, and do not require the employment to have terminated or for the employee to have brought any Tribunal proceedings.