Unfair Dismissal

We know that losing your job can cause considerable stress.

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)

  • Whistle blowing

  • 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.

FAIR REASONS FOR DISMISSAL


Under the law an employer can dismiss an employee fairly for five reasons. To avoid unfair dismissal, the employer must show that the dismissal was for one of these five reasons:


Capability


This would apply where an employee is dismissed for poor performance, does not have the right skills, experience and qualifications or is regularly ill and absent from work for long periods of time.


An employer must follow the proper procedure to terminate the employee’s employment. Failure to do so will result in the employee winning their Unfair Dismissal Compensation Claim with a possible uplift in the compensation award by the ET due to the employer’s failure to follow the proper procedure.


Conduct


The most common reasons for dismissal under this head are fraud, theft, and other serious misconduct. As with any dismissal, the employer must ensure that they have followed the proper procedure prior to dismissing the employee and that the dismissal is reasonable in the circumstances. Failure to do so will result in the employee winning their Unfair Dismissal Compensation Claim with a possible uplift in the compensation award by the ET due to the employer’s failure to follow the proper procedure.


Illegality


Under this head the employee may have committed or been accused of a criminal offence at work or outside working hours. It may also be reasonable to dismiss an employee under this head if for instance the employee needs a driving licence to perform their duties for the business and they lose their licence resulting in the employee not being able to perform their duties for their employer.


Redundancy


A Redundancy situation would arise when an employer plans to close down part or all of their business at a location where the employees work; or where the business no longer needs the same number of workers to carry on that particular  work. For dismissal on the ground of redundancy to be fair an employer must follow the proper redundancy procedure to terminate the employee’s employment. Click here for further information on Reorganisations and Redundancies. Failure to do so will result in the employee winning their Unfair Dismissal Compensation Claim with a possible uplift in the compensation award compensation award by the ET due to the employer’s failure to follow the proper procedure.


Some other substantial reason


This head can be used for other reasons that do not fall under the other four heads. If the employer can show that the reason for the dismissal was a ‘substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held’ the dismissal is regarded by the law as potentially fair even if does not fall under one of the other four heads.


Unfair Dismissal Process

Even if an employer shows that the di