A Brief Guide to Unfair Dismissal
Unfair dismissal law is in place to stop employees being unjustly relieved of their duties without a legitimate and justified reason.
As you might expect, given that unfair dismissal is a statutory as opposed to common law, these types of cases are very tightly defined.
Consequently, whether you're an employee or an employer, there are a number of steps you must work through to determine whether a dismissal actually is unfair.
Once this is determined, employees must make a complaint to an employment tribunal within three months (minus one day) of the date of dismissal.
Who Can Claim Unfair Dismissal?
To claim unfair dismissal, you must have been in your role for at least a year if you started working for your employer before 6th April 2012. If you started after the 6th of April 2012, you have to have worked there for two years.
Vitally, however, there are rules in place if you've worked for your employer for less than 2 years, and you've been dismissed for:
- Becoming pregnant.
- Any form of discrimination.
- Health and Safety issues.
- Joining or refusing to join a trade union.
- Exercising a statutory employment right.
You should also note there are some employees who can't claim unfair dismissal, such as independent contractors or freelance agents.
Have You Truly Been Dismissed?
Legally, you're dismissed when your current employer brings your contract of employment to an end, with or without notice, or doesn't renew a fixed term contract that's run out.
Additionally, you're also dismissed if:
- You're made redundant – even if it's voluntary.
- Your employer won't take you back after a strike.
- Your employer refuses your return to work after maternity leave.
- Your employer puts pressure on you to resign.
These are all in addition to constructive dismissal, where your employer makes your position untenable, leading to you handing in your resignation.
If you're unsure whether you've been dismissed unfairly, get in touch with a member of the team here at Ashby Cohen as soon as possible and we can quickly assess your situation.
Have You Suffered Discrimination?
If you feel you've been discriminated against in the workplace, it's important to know your rights. Common areas of discrimination you may encounter include:
- Your age.
- A disability.
- Pregnancy and maternity.
- Race or religion.
- Sexual orientation.
You needn't have worked for your employer for any specific length of time in order to claim for discrimination, and you can make a claim instead of, or alongside, a claim for unfair dismissal.
To claim unfair dismissal as well as discrimination, you must have worked for your employer for at least a year if you started before 6th April 2012, or two years if you started on or after 6th April 2012.
Why Were You Dismissed?
The reason(s) for your dismissal will have an effect on the action you can take – although the reason an employer gives may not always be the actual reason for your departure
While there are procedures in place that an employer must follow, it's important to first get to the bottom of your dismissal.
Automatically Unfair Dismissal – Not Dependent On Length of Service
In some cases, an employment tribunal will immediately decide that your dismissal was unfair, irrespective of how long you've worked there.
Some of the reasons include:
- If you're dismissed because you're pregnant or off on maternity leave.
- If you're dismissed for flexing your statutory employment rights.
- If you're dismissed for reporting a danger to health and safety in the workplace.
- If you're dismissed for refusing to work on a Sunday if you work in a shop or betting shop.
- If you've "blown the whistle" on a matter of public concern at work
Crucially, if you've been dismissed for one of the reasons set out above, get in touch with us here at Ashby Cohen as soon as possible and we'll talk you through the next steps.
Automatically Unfair Dismissal – Dependent on Length of Service
If you've not been dismissed for one of the reasons above, but for one of the reasons that follow, an employment tribunal should find you've been automatically unfairly dismissed if you've worked for your employer for at least a year and started before 6th April 2012, or at least two years if you started on or after 6th April 2012 ...
- Your employer's business has been transferred and your dismissal is because of a new owner taking over.
- If you've not declared a spent conviction.
Again, it's vital that you quickly seek expert legal advice to protect your interests – and we can help you through each stage of the process.
Procedures an Employer Must Follow
If an employer decides to take disciplinary action or dismiss an employee, they should follow the Acas Code of Practice procedures on discipline and grievances.
Although they're not legally bound to do so, an employer may have to pay additional compensation if they don't offer up a good reason for not following the code.
For employers who ARE following the Code of Practice, disciplinary and dismissal procedures typically follow these steps ...
If an employer is considering dismissing an employee or taking disciplinary action, a letter should be the first step in laying out the problems.
After sending written details, a meeting should be arranged to discuss the underlying issues.
Employees can bring someone to accompany them in the meeting. This can be a colleague or a trade union rep.
Once the meeting has concluded, the employee should be sent a decision about what happens next. The decision should be made within a reasonable timeframe.
The Right to Appeal
If an employee disagrees with the decision made by the employer, the opportunity to appeal against it should be given.
While employees don't have to appeal, winning a subsequent employment tribunal case may result in reduced compensation if an appeal wasn't made.
Expert Legal Advice
It goes without saying that there's much more an unfair dismissal case than meets the eye, which is why, whether you're an employer or employee, you need the experts in your corner.
For more information about how we can help you protect your interests, get in touch with a member of our team today for your free consultation – we'd be happy to help.