The Employment Rights Act on unfair dismissals helps to protect employees from being wrongly let go by an employer. Section 94(1) of the Employment Rights Act ensures that employees have the right not to be unfairly dismissed by their employers. Following on from our initial guide about unfair dismissals, we recap what constitutes an unfair dismissal, and look in more detail at how can you determine if you have been unfairly dismissed.
What is an Unfair Dismissal?
Let’s familiarise ourselves with what an unfair dismissal is and how this differs from just and fair dismissals.
Unfair dismissal occurs when an employer unlawfully ends an employee’s employment. This should not be confused with constructive dismissal. This occurs when an employee resigns due to their employer creating intolerable working conditions or breaching the employment contract.
The following points must be considered when bringing a claim for unfair dismissal:
- Has there been a dismissal?
- Was the employee a qualifying employee?
- Was there a fair reason for the dismissal?
- Was the dismissal fair in all the circumstances?
1. Has There Been a Dismissal?
To claim unfair dismissal, you must have been dismissed by your employer. This can happen with or without notice.
2. Was the Employee a Qualifying Employee?
In addition to being dismissed by your employer, you must meet the following criteria:
- Employment Duration: You must have worked for the employer continuously for at least two years (except for certain automatically unfair reasons)
- Exclusion: You must not belong to a job category excluded from unfair dismissal protection, such as police officers or members of the armed forces
- Time Limit: You must file your claim within three months from the date of dismissal
3. Was There a Fair Reason for the Dismissal?
Dismissal reasons fall into two categories: potentially fair reasons and automatically unfair reasons.
Potentially Fair Reasons for Dismissal
These are reasons an employer might use to justify a dismissal:
- Conduct: Misconduct or inappropriate behaviour at work
- Capability: Inability to perform job duties to a required standard
- Redundancy: The role is no longer needed
- Statutory Duty: Legal reasons prevent the continuation of employment
- Some Other Substantial Reason: Any other serious reason that justifies dismissal
When you bring an unfair dismissal claim, your employer must prove there was a fair reason for the dismissal. But even if they have a fair reason, they also need to show they acted reasonably and followed fair procedures. If they did not, you might have a case for unfair dismissal.
Automatically Unfair Reasons
Certain reasons for dismissal are considered unfair by nature, including:
- Dismissal for joining or participating in trade union activities
- Dismissal for asserting a statutory employment right
- Dismissal related to pregnancy or maternity leave
- Dismissal for attending jury services
- Dismissal for insisting on being paid the minimum wage
- Dismissal for requesting flexible working
If you can prove that your dismissal was for an automatically unfair reason, your claim will succeed without needing to demonstrate that your employer acted unreasonably. Also, for most of these reasons, you do not need to have been employed for two years.
4. Was the Dismissal Fair in all the Circumstances?
Even if an employer had a potentially fair reason for dismissal, they must also have acted fairly. The Employment Tribunal will determine the fairness of the dismissal by assessing both substantive and procedural fairness:
- Substantive Fairness: Was it reasonable for the employer to dismiss the employee, applying the Burchell Test?
- Procedural Fairness: Did the employer follow a fair procedure in deciding to dismiss the employee?
Thus, while your employer may have a potentially fair reason for dismissal, you may still have a claim for unfair dismissal if the Employment Tribunal finds that the dismissal was unreasonable, and a fair procedure was not followed.
Understanding your rights regarding unfair dismissal is crucial for ensuring fair treatment at work. If you believe you have been unfairly dismissed, contact our specialists for advice and assistance. We can help you navigate the complexities of your case and ensure your rights are protected. Contact our Employment Law Solicitors today to arrange an initial consultation.
