If you or someone you know has recently been dismissed from employment and believe the grounds for this termination were unjustified, then this may have been an unfair dismissal.
What is an unfair dismissal, you may ask? We will answer that and all your other burning questions regarding unfair dismissal in this helpful guide, so you know if your termination of employment counts as an unfair dismissal and the actions you will need to take in the case that it is.
What is unfair dismissal?
An unfair dismissal is when an employer has terminated an employee’s contract of employment without a fair or justifiable reason (this includes false reasons) and/or does not follow the company’s formal disciplinary or dismissal procedures.
In some situations, this may be more intricate and complicated to discern, however there are some instances where a dismissal will automatically count as unfair. This can include being dismissed due to any of the following reasons:
● You ask for flexible working
● You refuse to give up your legal working time rights (e.g. your lunch breaks)
● You resign and give the correct notice period, but are dismissed before the completion of this period
● You join a trade union
● You take part in legal industrial action that lasts 12 weeks or less
● You require time off to complete jury service (a legal obligation when called)
● You apply for maternity, paternity or adoption leave
● You are on any maternity, paternity or adoption leave you’re entitled to
● You try to enforce your right to receive Working Tax Credits
● You expose wrongdoing in the workplace (also known as whistleblowing)
● You acted regarding a health and safety issue
● You are forced to retire (known as ‘compulsory retirement’) when this is illegal within your profession
● Because of your race, ethnicity, gender, sexuality, disability, religion or age
These are all unlawful reasons to dismiss an individual; though you can still fall within these categories when dismissed, none of them can be the reason for your dismissal.
If a person is dismissed due to misconduct, poor performance, redundancy or breach of contract on their part, then this most likely constitutes a fair dismissal - however, it still may be unfair if one of these reasons is given and you believe it to be untrue.
What is constructive dismissal?
Though similar to unfair dismissal, a constructive dismissal (legally known as ‘constructive unfair dismissal’) is when an employee unwilfully resigns from their position because internal factors within the workplaces force them to do so, not because they actually wish to resign.
For example, any of the following may be reasons behind a resignation that counts as a constructive dismissal:
● You are suddenly demoted for no reason
● You are regularly not being paid your contracted salary (without valid explanation/reasoning)
● You are being forced to accept unreasonable working patterns that are not stated in your contract (e.g. working excessive overtime or night shifts that have not been contractually agreed)
● You are being bullied or experiencing workplace discrimination by your employer, or, you are being bullied or experiencing workplace discrimination by other employees and your employer refuses to acknowledge this when you raise a grievance with them
● Your employer takes away benefits that your contract states you are entitled to (e.g. company car or phone - assuming you have not misused either of these)
● Your employer does not ensure your working environment is safe
What are my employee rights when it comes to unfair dismissal?
Challenging a Dismissal
If you have been unfairly dismissed, then the main factor that affects your legal rights to challenge the dismissal is the length of time that you have been working for your employer before the dismissal.
If you have been dismissed for an automatically unfair reason, such as those previously listed, then you are within your rights to challenge the dismissal regardless of how long you have worked for the employer.
If however, you have been unfairly dismissed for another reason to those listed, then you are only able to rightfully challenge the dismissal if you have worked for the employer for a minimum of 2 years - if you have worked for them for under 2 years then you do not have the right to challenge it.
You must also legally be an employee in order to challenge an unfair dismissal. For example, if you work for an agency and aren’t guaranteed work, or are self-employed (in most cases) then you do not count as an employee and have no right to challenge a dismissal from whoever you have been working for.
Written Notice
If you do not receive written notice of your dismissal including the reason behind it, then you should ask your employer for a written explanation of why you have been dismissed (keeping a record of when you asked - it is best to ask in writing so you can prove this). Your employer must send you a written explanation within 2 weeks of you asking.
Having a written explanation can help you determine whether your dismissal is unfair or not, and be used in your evidence when making a claim to an employment tribunal.
How do I seek justice for being unfairly dismissed?
If you are within your employee rights to seek justice for an unfair dismissal, then you will be able to appeal. As part of the Acas codes of practice (setting the minimum standard of fairness that workplaces should follow), your employer should tell you how to appeal through their appeal process.
It is recommended that you try to resolve things informally or through a formal grievance raised with your employer this way first, however if you go through the appeal process and still wish to take things further, then you can make an unfair dismissal claim to an employment tribunal. If you do wish to make a claim to an employment tribunal, then you must submit your claim within 3 months less 1 day of your termination of employment.
This date almost always counts as either:
(1) The last date of your notice period; or
(2) The date you were dismissed if no notice period was given by your employer
We recommend that you also find a solicitor who specialises in employment law claims to offer you legal advice in relation to your claim.
What is the claim process like?
There are certain actions that must be taken in the process of making a claim to an employment tribunal.
Firstly, you must inform the Advisory, Conciliation and Arbitration Service (Acas) that you intend to make a claim to the tribunal before actually making it. The reason you must do this is because they will offer you their ‘early conciliation’ service (a free and voluntary service that allows you the opportunity to settle the dispute without going to tribunal), from which, if this is not successful, you will receive an early conciliation certificate that you will need to be able to make a claim.
Once you have your early conciliation certificate, you must make a claim to the employment tribunal within 1 calendar month. After you have made your claim, you will be asked to fill out extensive paperwork in preparation for the tribunal hearing, in which the judge will hear the case and consider their decision on whether your dismissal was unfair or not. If your claim is relating to discrimination, a jury will also be present at the trial.
Due to the complex and time-consuming nature of employment tribunals and the paperwork that must be filled out, we recommend you employ the help of an employment law solicitor from DJP Solicitors, who is familiar with the process and will be able to assist you on how to best make your case.
Where can I get employment law advice?
For support on whether or not you are eligible to appeal an unfair dismissal and any questions you have in regard to making a claim to an employment tribunal, you can contact your local Citizen’s Advice, or, if you are part of one, trades union. They will be able to advise you on whether your dismissal is unfair and help you to navigate the next steps to take.
However, employing the help of a solicitor from a reliable law firm is the one of the most helpful options for you to take. A legal specialist in employment law will be able to assist you in all of the legal aspects of your case, deciphering the jargon on any paperwork for you as well as completing said paperwork that you are required to fill out with efficiency and accuracy.
They will also be able to listen to the information you give them regarding your dismissal and weigh up the weaknesses and strengths of your claim, in order to present the evidence of your claim as favourably as possible to the employment tribunal.
DJP Solicitors
At DJP Solicitors, we have over 15 years of experience in employment law. Whether you have faced an unfair dismissal, workplace discrimination or anything in between - whatever your employment-related issue is, we will be able to help. We are proud to offer legal advice and representation over employment law claims throughout Aberdeenshire.
We also offer our legal services for other issues you may be experiencing, including separation and divorce, landlord and tenant disputes, civil court cases, and more.
Contact us today to enquire about our services and to seek our legal advice on your matter. We offer in person, video and telephone consultations with our friendly and professional solicitors.
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