If you have been dismissed from work and you think this may amount to unfair dismissal, or have had an unfair dismissal claim raised against you as an employer, we can assist you. Miller Samuel Hill Brown are employment law experts who specialise in unfair dismissal cases.
There are several ways in which a dismissal may be regarded as unfair. There may be problems with the internal disciplinary procedure which has been adopted by an employer. Alternatively, an employee may be dismissed where there are insufficient substantive grounds to allow for such a decision.How to find out if a dismissal is unfair?
Only employees have the right not to be unfairly dismissed. As such only people who are employees have the right to bring such a claim. This means people who work as contractors, are self-employed or who freelance or provide consultancy services will not be protected . For this reason, the first thing to consider is the exact nature of the employment status.
In April 2012, the Government changed the length of time an employee is required to have worked for an employer before they can make a claim for unfair dismissal. If an employee began working for an employer before 6th April 2012, then they must have been employed for at least one year to have acquired the right to bring an unfair dismissal claim. If employment began on or after that date, then the relevant length of continuous service required is two years. On some occasions, no qualifying period of service is required before an employee has the right to bring a claim. For example, where an employee is dismissed for a reason relating to pregnancy, childbirth or family leave, they will be entitled to pursue an unfair dismissal claim even if they have only been employed for 1 day. The exceptions to the general qualifying requirement are limited and will not apply to the majority of dismissals.
An employer can no longer automatically force an employee to retire because they have reached a certain age. If an employer seeks to retire an employee without being able to objectively justify that decision, the employee may be able to make a claim for unfair dismissal.
Dismissal occurs when an employee:
There are, however, some things which do not count as a dismissal:
In the majority of cases, an unfair dismissal case will arise where an employer has terminated an employee’s contract of employment. When considering whether that decision is fair or otherwise, an Employment Tribunal will need to consider whether a 2 stage test has been complied with.In the first place, the employer will need to establish that they have a potentially fair reason for dismissal.
The recognised potentially fair reasons are:
Once an employer has established they have a potentially fair reason to dismiss an employee, the Employment Tribunal must then go on to consider whether it was reasonable for the employer to actually dismiss the employee for the given reason.
Where an unfair constructive dismissal claim is brought, the Employment Tribunal need to consider whether:
In addition to having a valid reason for dismissal, an employer must also follow certain basic procedural requirements. These requirements are laid out in the ACAS Code of Practice on disciplinary and grievance procedures. An employee may be entitled to more compensation from an employer if they do not to follow them.Under the ACAS Code, an employer should:
Ordinarily, an employee must bring a claim for unfair dismissal within three months of the last date of employment. The relevant date is either the date of dismissal or, if notice was given, the last day of the notice period.
If you require any detailed advice on an unfair dismissal, whether you have received a claim raised by a dismissed employee or you believe your employer may have unfairly dismissed you, contact Miller Samuel Hill Brown for expert advice and representation.