Who can claim for unfair dismissal?
If your employer dismisses you without good reason and/or without following an appropriate process, you can potentially raise an Employment Tribunal claim for either wrongful or unfair dismissal.
In order to raise a claim for unfair dismissal, you must satisfy a Tribunal that;
you were an employee, whether part time or full time;
you had the necessary continuity of service (two years)
you were dismissed
There are certain circumstances where employees with less than two years’ service can bring a claim for unfair dismissal. Examples of this include dismissal for health and safety reasons, as a result of whistleblowing, or on the grounds of race, sex, disability, age, sexual orientation or religion/belief. If there is any uncertainty in relation to whether you have the necessary service to bring a claim it is advisable to seek advice from an employment solicitor.
Potentially fair dismissals
When is a dismissal fair?
Dismissal is normally fair if an employer can show that it is for one of the following reasons:
a reason related to an employee’s conduct
a reason related to an employee’s capability or qualifications for the job
because of a redundancy
because a statutory duty or restriction prohibited the employment being continued
some other substantial reason of a kind which justifies the dismissal
Once an employer has shown that the reason for dismissal falls within one of the above categories the Tribunal will then consider whether in all the circumstances the employer acted reasonably.
Automatically unfair dismissals
Dismissals are classed as ‘automatically unfair’ if the reason for dismissal is connected to an employee exercising specific rights relating to:
pregnancy: including all reasons relating to maternity
family reasons: including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
representation: including acting as an employee representative
trade union membership grounds and union recognition
part-time and fixed-term employees
pay and working hours: including the Working Time Regulations, annual leave and the National Minimum Wage.
for health and safety reasons
a transfer of an undertaking
employee attempting to enforce a statutory right
whistle-blowing
This list is not comprehensive and we advise you to check with our specialist employment lawyers.
What is constructive dismissal?
An employee can claim unfair dismissal in certain circumstances when they resign.
In this situation, the employee has to demonstrate that there has been a fundamental breakdown in the employee / employer relationship.
Employees should think very carefully before resigning from their employment and claiming constructive dismissal and it is recommended that advice is taken prior to resigning.
What are the dismissal procedures?
The ACAS Discipline and Grievance Code of Practice sets out the basic procedural requirements but most employers have their own Disciplinary Policy which should be followed. For more information please see http://www.acas.org.uk/index.aspx?articleid=2174
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