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Unfair Dismissal 2018-02-18T17:33:00+00:00

YOU CAN ONLY BRING A CLAIM OF UNFAIR DISMISSAL IF YOU HAVE COMPLETED TWO YEARS’ CONTINUOUS SERVICE WITH YOUR EMPLOYER

How do I make a claim of unfair dismissal?

Two Year Rule

In most cases, you can only bring a claim of unfair dismissal if you have completed two years’ continuous service with your employer by the time you are dismissed. The time you are dismissed is the day on which your notice expires or, if you have been dismissed without notice, the day you were told.

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There are some exceptions to the rule. You do not need twenty four months’ service if you are dismissed for certain reasons. Below are the most ‘popular’:

  • Pregnancy, maternity or reasons relating to pregnancy and maternity;
  • ‘Whistle-blowing’;
  • Refusing to work more than the maximum weekly working hours (48);
  • Making a flexible working request;
  • Exercising part-time workers’ rights;
  • Exercising fixed-term employees’ rights.

If you do not qualify for protection from unfair dismissal, you may still be able to present a claim regarding your dismissal if your employer discriminated against you. This does not require any particular length of service (see Discrimination).

To be eligible to bring a claim of unfair dismissal, you must have been an employee. This may sound simple but is often complex in practice.

If you have a contract of employment, you will be an employee.

If you do not, you may still be an employee, even if you and your employer consider you to be self-employed.

It sounds obvious but you also have to have been dismissed to be able to complain to an employment tribunal that you have been unfairly dismissed.

Dismissal means any of the following:

  • Your employer terminates the contract of employment, either verbally or in writing or forces you to resign under threat of dismissal;
  • Your fixed-term contract expires.
  • You resign in response to your employer’s serious breach of the employment contract (i.e. constructive dismissal, see below).
  • A constructive dismissal is a resignation that is treated as a dismissal for the purpose of an unfair dismissal claim. It requires the following:
    1. Your employer must have breached a fundamental term of the contract;
    2. This includes the implied term of trust and confidence. To breach that term, your employer must have acted in such a way as to destroy or seriously damage the employment relationship.
    3. Whether your employer has acted that way is assessed objectively i.e. it does not matter whether you think that your employment relationship has been destroyed, it only matters that the employment tribunal considers that your employer’s conduct was of the sort that was likely to destroy the relationship;
    4. You must have resigned because of the breach;
    5. You must also not have waited too long before resigning or you may be taken to have waived the breach of contract.
    6. See further at Constructive Dismissal
Your dismissal could be automatically unfair if it relates to any of the following reasons:

  • Performing jury service;
  • Leave for family reasons;
  • Making a protected disclosure (i.e. whistle blowing);
  • Asserting a statutory right;
  • Making an application for flexible working.

Your dismissal will be potentially fair if it relates to any of the following:

  • Capability
  • Conduct
  • Redundancy
  • Some other substantial reason e.g.
    1. Reorganisation
    2. Refusal to accept changes in terms and conditions
    3. Personality clashes

It is for your employer to establish the reason for dismissal and that it falls into one of the above categories.

If it does, your dismissal will be unfair if the decision was not one that was available to a reasonable employer.

In conduct and capability cases, this means having reasonable grounds for believing that you had committed misconduct or were not capable after carrying out as much investigation as was reasonable in the circumstances (including, in the case of ill-health dismissals, ascertaining the medical position). For further information, see our pages on Conduct and Capability.

It also means that the punishment of dismissal must be one that no reasonable employer could have decided upon. This would depend on the seriousness of the misconduct or incapability, how others have been treated in the same situation, whether there was anybody else at fault (including your employer) and all the surrounding circumstances.

Your dismissal may be unfair if your employer has failed to follow a fair procedure. This means informing you of the allegations against you, providing any evidence that may be used against you, holding a disciplinary meeting, allowing you to put forward your defence and allowing you an appeal.

In redundancy cases, a fair procedure means providing sufficient warning and consultation, using reasonable (normally objective) selection criteria, following a reasonable basis for carrying out any scoring and searching for alternatives to dismissal e.g. re-deployment.

There are many different reasons for dismissal and fairness must be judged in all the circumstances of the individual case. If you think you have been unfairly dismissed, call one of our solicitors for a free initial assessment.

I have been dismissed for misconduct, can I make a claim?

As to whether you qualify for unfair dismissal protection i.e. you have served a sufficient length of service, you are an employee and you have actually been dismissed, see Unfair Dismissal.

Is my dismissal fair or unfair?

Conduct is a potentially fair reason for dismissal. The employment tribunal will expect your employer to establish that it had a genuine belief in misconduct i.e. it is not a sham.

Your dismissal will be unfair if the decision was not one that was available to a reasonable employer. In misconduct cases, this means:

  • Having reasonable grounds on which to conclude that you are guilty of doing what is alleged.
  • Carrying out as much investigation as was reasonable necessary.
  • Dismissal being too harsh a punishment.

At all stages, this means that your employer’s decisions and actions will be unfair if they could not be available to a reasonable employer.

Your dismissal may be unfair if your employer has failed to follow a fair procedure. This means:

  • Informing you of the allegations against you
  • Providing any evidence that may be used against you
  • Holding a disciplinary meeting
  • Allowing you to put forward your defence and allowing you an appeal.

There are no hard rules surrounding what will be fair or unfair and each case depends on its own circumstances. If you think that you have been dismissed unfairly, you should contact one of our solicitors for a free initial assessment.

I have been dismissed for incapability, can I make a claim?

As to whether you qualify for unfair dismissal protection i.e. you have served a sufficient length of service, you are an employee and you have actually been dismissed, see Unfair Dismissal.

Is my dismissal fair or unfair?

Capability is a potentially fair reason for dismissal. As with conduct, the employment tribunal will expect your employer to establish that it had a genuine belief in misconduct i.e. it is not a sham.

Your dismissal will be unfair if the decision was not one that was available to a reasonable employer. In capability cases, this means:

  • Having reasonable grounds on which to conclude that you are not capable of performing your role.
  • Carrying out as much investigation as was reasonable necessary.
  • Warning you of the issues and providing opportunity to improve. This may not apply if you commit an act of gross negligence.
  • Dismissal being too harsh a punishment.

At all stages, this means that your employer’s decisions and actions will be unfair if they could not be available to a reasonable employer.

With ill-health dismissals, this will mean ascertaining the true medical position and prognosis. That may be through occupational health reports or contact with your GP. You would normally be expected to consent to these enquiries.

Your dismissal may be unfair if your employer has failed to follow a fair procedure. This means:

  • Informing you of the allegations against you
  • Providing any evidence that may be used against you
  • Holding a disciplinary meeting
  • Allowing you to put forward your defence and allowing you an appeal.

There are no hard rules surrounding what will be fair or unfair and each case depends on its own circumstances. If you think that you have been dismissed unfairly, you should contact one of our solicitors for a free initial assessment.

What is constructive dismissal?

Unfair dismissal claims require an employee to have been dismissed. However, in some instances, employees have not been dismissed but instead resigned because of the way the employer has treated them. If they were entitled to resign the law will treat those employees as ‘dismissed’. This also applies to the meaning of ‘dismissal’ within anti-discrimination legislation. Although the employee has not been actually dismissed, they are known as constructively dismissed.

When have I been constructively dismissed?

There are a number of elements to constructive dismissal:

  • The employer has to breach the employment contract in some way.
  • The breach of contract must be sufficiently serious to justify a resignation.
  • The employee must leave because of the breach of contract and not for some different reason.
  • The employee must not wait too long before resigning.

Serious breach of contract

A breach of contract has to be of a fundamental term of the contract i.e. one so important that it goes to the root of the contract.

This means something more than simply unreasonable behaviour.

A breach of the employer’s duty of trust and confidence (see below) will always justify resignation.

Trust and Confidence

One of the most commonly used fundamental terms is an implied term of trust and confidence. Sometimes, the employer’s breach of contract is not of an express term e.g. duty to pay wages but is such that the employer has conducted themselves in such a way as to undermine or bully the employee.

Breaching trust and confidence means acting in such a way as to destroy or seriously damage the employment relationship. Examples of a breach of trust and confidence include:

  • Treating an employee in a degrading way
  • Threatening behaviour
  • Allowing bullying to continue
  • Failing to provide safe working conditions

The tribunal will assess the alleged breach of contract objectively. That is to say that they will determine whether the conduct was capable of destroying the relationship and not whether the employee felt it was capable.

If the employer’s conduct has continued over a period of time but each incident has not on its own been serious enough to justify resignation, an employee can combine the entire course of conduct so as to state that together they amount to a breach of trust and confidence. This requires the tribunal to identify the ‘last straw’ and add it to all the other matters.

Employee must resign because of the breach of contract

First, you must actually resign. A resignation is not effective if the employer is not told that you are leaving.

You will need to tell the employer that the reason for resignation is the breach of contract.

The employee also has to show an employment tribunal that the breach of contract caused the resignation. If not, there will be a voluntary resignation and not a constructive dismissal.

Delay

If you delay for too long between the breach of contract or last straw and your resignation, you run the risk that an employment tribunal finds that you waived the breach of contract and chose to continue with the contract regardless.

There are many factors that are taken into account when determining whether someone has delayed for too long including sickness absence, whether a grievance is being pursued, statutory trial periods and sometimes even allowing a short time to look for other work.

What happens if I have been constructively dismissed?

Just because you have been dismissed, it does not mean that you have been unfairly dismissed. Your employer can still attempt to show a fair reason for breaching the contract. However, this is often difficult in practice.

Your dismissal will be potentially fair if it relates to any of the following:

    • Capability (incompetence or ill-health)
    • Conduct
    • Redundancy
    • Some other substantial reason e.g.

 

    1. Reorganisation;
    2. Refusal to accept changes in terms and conditions;
    3. Personality clashes;

For further information, see Unfair Dismissal.

If you have resigned in response to discriminatory treatment, your constructive dismissal may be an act of discrimination in itself. See Discrimination.

What compensation will I receive?

A constructive dismissal claim is an unfair dismissal claim.

The compensation for unfair dismissal is to cover loss arising from the dismissal or in this case the resignation. That means, you can claim your losses that result only from the termination of the employment and contract.

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  • NO WIN, NO FEE
  • FREE CASE ASSESSMENT
  • UNFAIR DISMISSAL EXPERTS
  • 30 YEARS’ UNFAIR DISMISSAL EXPERIENCE