Losing your
job can be one of the most stressful life events a person can go through and
this stress can be compounded if you feel like the dismissal was an unfair one.
Whether you’re fired, made redundant or dismissed without warning, losing a job
can be a difficult and uncertain time.
How you
choose to proceed will depend on your individual circumstances, and there’s a
big difference depending on whether you feel the dismissal was fair or unfair.
A ‘fair’ dismissal is predominantly based on an employee’s conduct, so,
unfortunately, there are some situations where a company is well within their
rights to dismiss an employee. Unfair dismissal is more complicated but
includes situations such as firing an employee because they are pregnant.
Whatever
your situation, if you’ve been dismissed and are looking for some legal advice
about whether it was fair or unfair and what you can do next, read on for our
handy guide.
What counts as a fair dismissal?
As
mentioned, fair dismissal is based on an employee’s conduct and covers things
like their performance, capability or any legal restrictions such as an
undisclosed immigration status. We will explore some common reasons for fair
dismissal in more detail below.
Conduct/Misconduct
This general
sounding term refers to how an employee conducts themselves at work and covers
everything from minor issues like timekeeping up to more serious issues like
general professionalism and attitude. Something like poor timekeeping can
usually be addressed and fixed at an earlier date by having an informal
meeting, so it’s highly unlikely that an employee would be dismissed on poor
time management alone; unless it was continuous and severe.
More serious
issues like theft or discrimination against fellow employees are regarded as gross
misconduct and in these cases, an employee can be dismissed immediately without
notice.
Capability and performance
Capability
refers to the employee’s physical and mental ability to do their job, and sadly
there may be times where dismissal is necessary due to a serious or longterm
health condition. However, dismissal is usually considered the final option and
employers should first take appropriate steps to see how they could support or
accommodate a worker to do their job.
Dismissal
based on poor performance occurs if an employee doesn’t possess the skills or
experience necessary to fulfil their role. However, dismissal can not occur
straight away and it’s up to the employer to follow a proper performance
management schedule and give the person time to improve their performance. This
may involve additional training or support for the employee if appropriate.
Redundancy
Redundancy
can be very difficult for a company as it often means the business is folding,
or at least downsizing. Making someone redundant is only fair if their job is
no longer required, so you cannot make someone redundant just because you don’t
like them (an issue of gross misconduct would be different).
The
redundancy process usually takes around four to six weeks and occurs if the
business is closing down, if there isn’t enough work for the team to complete,
or if a certain role is no longer required.
Statutory illegality or breach of a statutory
restriction
This covers
a breach in legal requirements for the role, for example, if your job involves
driving and you lose your driving licence. It also covers issues such as an
employee’s right to work in the UK, so if a work visa runs out or if you
discover that an employee does not have the right to work in the UK then the
dismissal is seen as fair. However, in many cases, you will still need to
follow a formal dismissal procedure.
What counts as an unfair dismissal?
Grounds for
unfair dismissal are almost always fought on the basis of discrimination; so if
you feel that you were dismissed because of your gender, race, age or religion,
you may have a legal claim against your employer. We will discuss types of
unfair dismissal and the support available in more detail below.
Pregnancy
Dismissing
an employee because they are pregnant is classed as automatically unfair and
this also extends to all reasons relating to maternity. It’s also unfair to
dismiss an employee for other family-related reasons, including paternity
leave, adoption leave or time off for dependants.
Discrimination reasons
It is
classed as unfair and unlawful to dismiss an employee based purely on their
race, religion, gender, sexual orientation or age. There may be a few cases
where compulsory retirement age is necessary due to health and safety reasons
(e.g airline pilots) but an employer must be able to justify this.
If you
believe that you’ve been dismissed unfairly due to one of the above reasons,
we’ll look at how you can seek help and support in more detail further on.
Failure to follow a fair disciplinary or dismissal
process
If employers
fail to give enough notice (for example, for redundancies) or fail to follow
the correct dismissal procedures then an employee may have a claim against them
for unfair dismissal. It’s vital that employers give all staff enough notice
and honour terms of the contract (this may not apply in cases of gross
misconduct).
In some
cases, employees can claim constructive dismissal if they’ve been forced to
resign due to employer’s unreasonable behaviour, harassment or sudden changes
to their contract.
What can I do if I believe I’ve been unfairly
dismissed?
If you
believe your dismissal or termination of contract was unfair then there are
several routes you can take to appeal the decision. Seeking professional legal advice
is always a smart first step and an
employment lawyer will be able to explain your rights and assess whether you
have a successful claim.
Depending on
the situation, you may be able to sort things out amicably with your employer
without the need to make a formal complaint or appeal. Ask for a meeting to run
through the reasons you’ve been dismissed and see if there are any steps you
could take to reverse the decision. You may need to refer back to your contract,
or you can contact a Labour Relations Agency to help you solve the problem.
If this
doesn’t work or isn’t an option, you can make a formal claim to an Industrial
Tribunal. In some cases, you can only do this after one year of service, but if
you’ve been dismissed for an automatically unfair reason then there’s no
minimum period of service required.
How to make an Industrial Tribunal claim
If you wish
to make an Industrial Tribunal claim for unfair dismissal then it must be made
within three months of being dismissed. You’re also not eligible to make a
claim if you’ve made a ‘compromise agreement’ with your employer, and in these
cases, you must have also received independent legal advice.
You must
tell the Advisory, Conciliation and Arbitration Service (Acas) that you intend
to make a claim to the tribunal. If the situation cannot be resolved then
you’ll be sent a certificate to allow you to take your claim to the tribunal
court - this must be done within one month. You can claim online or by post,
and you can find all the information you need on the UK government website.
As
mentioned, seeking legal advice before you make your claim is the best course
of action and if you belong to a trade union, they may be able to pay for a
solicitor on your behalf. It’s also important to keep records of your claim,
including dates, the background and the people involved.
If you’re
worried about a dismissal and are in need of professional employment law
advice, get in touch with the team at PJE Solicitors. Our expert team of
solicitors can help you make an unfair dismissal claim, and we also offer legal
aid and advice regarding a number of issues, including harassment, bullying,
contracts of employment and more.
We understand that running a business can be complicated,
which is why we offer our employment law services to both employers and
employees, as and when you need. We’re on hand to protect the reputation of
your company if you feel an unfair claim has been made, but we can also assist
employees and help you to reach a settlement agreement. If you’re looking for
‘solicitors near me’ or want more information about any of our services, don’t
hesitate to give us a call today or
visit our website.
