Dismissal

Unfair Dismissal

Dismissal of a certain employee will be unfair unless the employer can show that the reason (or main reason) for the dismissal was for one of these potentially fair reasons. These are:

  • Conduct
  • Capability
  • Redundancy
  • Illegality
  • Some other substantial reason

Your employer must also act reasonably in treating that potentially fair reason as a sufficient reason for dismissal. This means that the dismissal must be both “procedurally” and “substantively” fair.

Normally, only employees who have worked for their employer for a continuous period of two years can claim unfair dismissal. However there are some limited exceptions where an employee does need to have worked for the employer for this requisite minimum period of time. Exceptions to the 2 year continuous employment rule are where the dismissal is for one of the following reasons:

  1. Trade Union activities, carried out at an appropriate time. This is usually out of work hours or during work with the employer’s permission. (This does not include strikes or working to rule, which are breaches of your contract).
  1. Refusing to join a trade union.
  1. Where selection for redundancy was connected with a trade union issue.
  1. Where dismissal is linked with pregnancy and maternity rights.
  1. Shop or betting industry workers who object to working on Sundays.
  1. Where an employee is dismissed due to Sex, Race, Age or Disability Discrimination. An employee should bring a claim for discrimination, not Unfair Dismissal. If successful they are likely to receive more compensation.
  1. Dismissal relating to an employee asserting their rights under employment laws.
  1. Dismissal of an employee observing health & safety rules.
  1. Where an employee is dismissed for acting as an employee representative or person was a candidate to become an employee representative.
  1. Dismissal relating to an employee asserting their rights under the Employment Relations Act 1999, section 10, the right to be accompanied to a disciplinary or grievance hearing.
  1. Dismissal related to an employee acting as a pension scheme trustee.
  1. Dismissal relating to the Working Time Regulations.
  1. Dismissal relating to an employee asserting their rights under the National Minimum Wage Act 1998.
  1. Dismissal relating to an employee participating in protected industrial action.
  1. Dismissal relating to an employee asserting their rights under the Tax Credits Act 1999.
  1. Dismissal relating to an employee asserting their rights under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
  1. The selection of an employee for redundancy based upon a reason which would have been automatically unfair if the same reason was used to dismiss the worker.
  1. Dismissal based on “whistleblowing”, where disclosure is made in the public interest.

If you feel that you have been dismissed for any of the above reasons, or if you have 2 year’s or more continuous service and you feel that your dismissal was unfair, please do not hesitate to contact us on 01928 560022 for a free, confidential consultation. We have successfully challenged many unfair dismissals at appeal stage and at Employment Tribunal, and we are here to help you.

Constructive Dismissal

Constructive dismissal is a situation where the employee feels no choice but to resign due to the employer’s behaviour. For example, this could be because the employer has made the employee’s life very difficult by way of bullying, demotion, unwarranted disciplinary action or breach of trust, leaving the employee feeling as if they cannot remain in their job.

When this happens the employee’s resignation is treated as an actual dismissal by the employer, so the employee can claim Unfair Dismissal (albeit constructively). However it is important to note that the employer’s actions must have amounted to a fundamental breach of contract between the employer and the employee and the employee must be able to justify that resignation was warranted in order to bring a viable claim.

Further Examples of Constructive Dismissal can include:

  • Not supporting managers in difficult work situations.
  • Harassing or humiliating staff, particularly in front of other less senior staff.
  • Victimising or targeting particular members of staff.
  • Changing the employee’s job content or terms without consultation.
  • Making a significant change in the employee’s job location at short notice.
  • Falsely accusing an employee of misconduct such as theft or of being incapable of carrying out their job.
  • Excessive demotion or disciplining of employees.

An employee can resign over one serious incident or due to the build up of a number of less serious incidents. However, the employee must resign soon after the incident(s) in order to be able to rely upon it; otherwise they would be deemed to have affirmed the breach by their employer. Generally the actions of the employer must be a serious breach of contract.

Constructive dismissal can be a very complex claim to run, as an employee can resign and claim Constructive Dismissal due to the employer’s behaviour, but the employer could turn around and say that a particular breach of contract (i.e change of terms of business) was because of the reorganisation of the business. Often, the employer will be given the benefit of the doubt as Employment Tribunals do not like to interfere with business management.

However, if the employee resigned and can show that he or she thought that they had been treated too harshly over a disciplinary matter, it would be easier for the Tribunal to look for and find unfairness, particularly if the correct disciplinary procedures were not followed. Therefore, the strength of any constructive dismissal case does go on its individual facts and the evidence that the employee can produce to show that resignation was warranted.

We would advise you to obtain advice as soon as possible if you feel that you are at the point where you are contemplating resignation due to the actions of your employer. We specialise in this area of law and our solicitors will be on hand to provide a free consultation regarding your work situation. Please call us on 01928 560022 and speak to one of our specialist solicitors for free.

Wrongful Dismissal

Wrongful Dismissal is based upon contract law as there are minimum notice periods stated by law. The reason for minimum notice periods is to ensure that employees will be fairly treated by employers. If you have been dismissed but not paid the correct notice due to you, we can advise you about bringing a claim for wrongful dismissal. In some situations, an employer may dismiss you on grounds of gross misconduct to avoid paying you notice pay. We are specialists in this area and will assess the reasons and fairness of your dismissal.

These are as follows:

Minimum Notice Periods for Wrongful Dismissal

Time in Job

Under 1 month
Over 1 month
2 years’ service
3 years’ service
4 years’ service

Minimum Notice

No Notice
1 Week
2 Weeks
3 Weeks
4 Weeks

This carries on with 1 weeks’ notice for every extra year in the job, until 12 years service. 12 weeks’ notice is the maximum that the law goes up to.

Many employment contracts allow for more than the minimum stated by the law. For example, it is not unusual for employees who have only worked for 1 year to be entitled to 3 months’ notice under their employment.

This cuts both ways, if the employee decides to leave, the employer can ask and expect the employee to work this notice period. This gives the employer time to find a replacement. And if the employer wishes to dismiss the employee it gives the employee 3 months to find a new job.

This is why some senior employees may bring claims for Wrongful Dismissal rather than Unfair Dismissal, as they are bringing action under the terms of their contract instead. It is possible of course to bring both a claim for unfair dismissal (if you qualify for such a claim) and wrongful dismissal at the same time.

Our solicitors have a proven track record of bringing successful wrongful dismissal claims in the Employment Tribunal. If you would like to discuss your rights or if you have any queries, please call 01928 560022 for a free consultation and we will be more than happy to speak with you to see if we can assist in any way.