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.
Qualifying for the right- Length of continuous employment
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.
Age and Unfair Dismissal
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.
What is a ‘dismissal’?
Dismissal occurs when an employee:
- Has their contract of employment terminated by their employer (with or without notice);
- Is employed under a fixed term contract and that contract is allowed to expire, without being renewed; or
- Terminates the contract under which he is employed (with or without notice) in circumstances where he is entitled to because the employer has acted in breach of contract (a constructive dismissal).
There are, however, some things which do not count as a dismissal:
- Resignation of an employee’s own free will;
- Where employment comes to an end by way of a genuine mutual agreement;
- Suspension with full pay;
- Withdrawal of a job offer before the employment starts;
- Termination by operation of law; and
- Where it is no longer possible for the contract of employment to be performed (known legally as “frustration”).
When is a dismissal “unfair”?
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:
- Capability (i.e. an employee’s fitness for work or their ability to perform their role to the required standard);
- Contravention of a law; or
- Some other substantial reason (e.g. business re-organisation, pressure from a 3rd party, etc.)
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:
- The employer has fundamentally breached the employee’s contract of employment;
- The employee has resigned as a direct consequence of that fundamental breach; and
- The employee has delayed in submitting their resignation so as to indicate they have accepted the breach of contract and wish to continue to work.
The Dismissal Procedure
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:
- Write to the employee setting out the problem or issue for which they may be disciplined/dismissed;
- Provide the employee with the evidence upon which the allegation is based;
- Arrange a meeting to allow the employee the opportunity to respond and comment on the allegations being made. The employee is entitled to bring a colleague or trade union representative to this meeting.
- Following the meeting, inform the employee of their decision in writing.
- Allow the employee the opportunity to appeal if they disagree with the decision.
Time Limit for lodging an Unfair Dismissal claim
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.
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