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What is Considered an Unfair Dismissal and What to do if it Happens to you

What is Considered an Unfair Dismissal and What to do if it Happens to you

There are three important considerations concerning unfair dismissals:
● you need to have been an employee of the company, either full-time or part time (not self employed or other)
● you have 3 months less one day from your last day of employment to start taking action for an unfair dismissal
● unless your dismissal was for an automatically unfair reason (see below), you need to have been employed by the company continuously for a minimum of 2 years

What is considered an unfair dismissal?

‘Automatically unfair’ reasons for dismissal include:

  • pregnancy, including all reasons relating to maternity
  • family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
  • acting as an employee representative
  • acting as a trade union representative
  • acting as an occupational pension scheme trustee
  • joining or not joining a trade union
  • being a part-time or fixed-term employee
  • pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage
  • Whistleblowing

(a comprehensive list can be found here: https://www.gov.uk/dismiss-staff/unfair-dismissals)

Other unfair reasons for dismissing an employee would be anything else that didn’t fit into the 5 categories of reasonable reasons for dismissing an employee given in Section 98 of the employment rights act 1996.  This act states that reasonable reasons for dismissing an employee can be:

  • Capability - the employee is not capable (in terms of skill, aptitude, health or any other physical or mental quality), or qualified (any degree, diploma or other academic, technical or professional qualification relevant to the position), to perform the work which they were employed to do
  • Conduct - the employee has done something that is unacceptable or inappropriate
  • Redundancy – the job that the employee was employed to do is no longer needed
  • Legal reasons – for example an employee who is employed as a driver and who is subsequently banned from driving
  • Other substantial reasons - for example a client refusing to work with an employee

Note: if an employer fails to use a reasonable and fair procedure when dismissing an employee (firing or sacking someone), then the employee can make a claim for unfair dismissal even if the reason for dismissing the employee was reasonable.

What do I do if I think I have been unfairly dismissed?

If you think that your dismissal was unfair and you want to challenge it, you can appeal through your employer's appeal process. Your employer should tell you how to go about making an appeal.  Remember that you have 3 months less one day from your last day of employment to start taking action for an unfair dismissal.

You may want to speak to your trade union if you have one and, of course, it would be a good idea to get legal advice from a solicitor.

If you have tried unsuccessfully to appeal through your employer's appeal process then Acas can provide mediation, and if you want to take the process further, they can also help you make a claim to an employment tribunal: https://tell.acas.org.uk/

Could I get compensation?

If an employment tribunal concludes that you were unfairly dismissed, the compensation is usually made up of a basic award (the same as statutory redundancy pay), and a compensatory award (which takes into account future loss of earnings and other losses caused by the dismissal).

Other types of dismissal

Constructive dismissal:

When an employee feels they have no choice but to resign because of something serious that their employer has done, they might be able to claim for ''constructive unfair dismissal' (also known as constructive dismissal).

Wrongful dismissal:

When an employer has breached an employee's contract. It's usually to do with notice or notice pay. For example: dismissing an employee without giving them a notice period or notice pay or not giving someone the full notice period to which they are entitled.

Note: if you are entitled to make a claim for wrongful dismissal, it does not matter how long you have worked for your employer.

If you feel you have been unfairly or wrongfully dismissed from a position, then RDC Solicitors can help. Call us on Bradford 01274 735511, Ilkley 01943 601173 or Bingley 01274 723858. You can find out more about our employment law services here

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