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COVID 19: Guidance and Support Hub
Our Unfair Dismissal Solicitors can:
Advise whether you have a case for unfair dismissal.
Negotiate a settlement with your employer. This may include compensation for your unfair dismissal.
Represent you at an employment tribunal if required.
Eligibility Requirements for an Unfair Dismissal Claim
Two years continuous service with employer (but see exceptions): Since April 2010 an employee must have 2 years continuous service to bring an unfair dismissal claim. If the employee started employment with the employer before April 2012 the employee requires only 1 year’s continuous service.
Exceptions to the 2-year service period
There are some cases when an employee can bring a claim for unfair dismissal without having accrued 2 years’ service. In these cases, the dismissal will be classed as an “automatically unfair dismissal”. If, for example an employee is dismissed for:
belonging to or refusing to join a trade union, or
for taking part in trade union activities at an appropriate time or
for taking part in protected industrial action or for
wanting to take maternity, paternity or adoption leave,
for taking parental leave or
Taking time off for the care of dependants
Time off for public service (such as jury service)
Transfer of Undertakings (protection against dismissal during business mergers)
Unfair redundancy selection
Forced early retirement
Part-time or flexible working
Trade union membership
refusing to work in a shop on a Sunday or
sex, age, race reasons (eg having made a complaint of discrimination) gender reassignment, sexual orientation, age, religion or disability discrimination (in these particular cases, a worker is likely to be better off making a discrimination rather than unfair dismissal claim as compensation payments are higher in discrimination cases) or
whistleblowing where disclosure is in the public interest or
for any of the reasons set out in S104 of the Employment Rights Act 1996 (as amended)
or a woman is dismissed because she is pregnant
the employee can bring an Unfair Dismissal claim against their employer despite not having 2 years’ service.
An automatic unfair dismissal claim, like any other claim for being unfairly dismissed, must be brought before an Employment Tribunal within 3 months of the date of the termination of your contract. If this time limit has passed, you are not entitled to bring an unfair dismissal claim.
Time limit of 3 months less one day: There is a time limit of 3 months less one day from the date of termination of employment to bring a claim for unfair dismissal. If you wish to make claim for unfair dismissal you need to take legal advice as soon as possible. Be aware of delays caused by an appeal procedure. Some employers will deliberately string out the appeals procedure so that the decision is not made until after 3 months. Do not be lulled into a sense of security - if you are appealing your dismissal and the internal appeal takes more than three months, no matter the reason that your employer gives you, you must ensure that you lodge your unfair dismissal at the ET within the 3 months’ time limit- otherwise you will lose your right to do so.
WHAT IS UNFAIR DISMISSAL?
To win an Unfair Dismissal Claim, the employee must have completed two years’ service with their employer(subject to certain exceptions – please see below) and must be able to prove they have been dismissed.
Have I been ‘dismissed’?
When considering whether you have been unfairly dismissed, the first step is to check whether in the eyes of the law you have actually been ‘dismissed’.
Your employer may expressly terminate your employment by saying “I am dismissing you” or words to that effect. Your employer may also hand you a dismissal letter though that is not essential. However, there are occasions when a dismissal is not so clear-cut. For instance, your employer may say to you “ I am giving you two options – you can either resign or I will dismiss you” and you resign that is a dismissal even though he did not expressly dismiss you.
Dismissal can also occur if you resign because your employer has breached a term of your employment contract, your employer employs language which makes you believe that they are firing you and you then walk out or your employer does not renew your fixed term contract.
Though there has not been an express dismissal in these instances it is likely that an Employment Tribunal (ET) will conclude that you were dismissed.
The key considerations for an Unfair dismissal. There are two primary considerations for an ET to consider when looking at whether a dismissal was unfair:
The reason for the dismissal; and
Whether the employer acted reasonably in all the circumstances.
Unfair Dismissal Process
Even if an employer shows that the dismissal was for one of the five fair reasons, the employer still has to satisfy the ET that they followed a full and fair dismissal process equivalent to the procedures in the ACAS Code of Practice.
The statistics show that about 97% of employers lose unfair dismissal claims by not following the correct procedure.
What is a ‘fair’ dismissal procedure?
The ACAS Code of Practice sets out a fair disciplinary procedure as follows:
Step 1 – Notify the employee in writing of the details of the alleged poor performance or misconduct etc. Carry out the investigation. Inform the employee of the possible outcomes of any disciplinary meeting so they can prepare. You also need to give your employee copies of any evidence you are relying on, the time and date of the disciplinary meeting and notify the employee of their right to be accompanied to the meeting. You should also notify the employee of their right to appeal the decision.
Step 2 – The employee should be provided the opportunity to answer the case against them and provide their own evidence.
Step 3 – The employee should be notified in writing of the outcome. The employer has several options : a first or final warning can be issued, depending on the seriousness of the situation. If the offence is one of gross misconduct an employer may decide to dismiss the employee straight away.
Step 4 – When the employee receives notification of any disciplinary action to be taken against them, they should also be informed of their right to appeal the decision.
Specialist Unfair Dismissal Solicitors
How can Pure Business Law help?
If you believe that you have been dismissed by your employer unfairly or treated unfairly, please contact us today. We have specalists solicitors that can deal with all aspects of unfair dimissal. Our specialist redudnancy solicitors can also advise you on you redundancy and whether it was fair. Do not leave it late!
You can contact us by telephone on 01234 938089 or by email at firstname.lastname@example.org. We are specialist Employment Law Solicitors based in Bedford and operate nationally.
If you would like to discuss anything raised in this article, please contact us and speak with one of our solicitors. Pure Business Law is regulated by the Solicitors Regulation Authority and is a licensed member of the Law Society of England & Wales.
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