There are several ways to end your Employment Contract. You can resign by your wishing. You can be dismissed or you can be selected for redundancy by your employer.

Dismissal is when your employer ends your employment but they don’t always have to give you notice.

If you’re dismissed, your employer must show that s/he has a valid reason to justify it and s/he acted reasonably in the circumstances.
S/He must also be consistent. S/he must not dismiss you for doing something that other employees do.
S/he need to investigate the situation fully before dismissing you even if a complaint was made about you
If you’re a part-time or fixed-term worker, you can’t be treated less favourably than a full-time or permanent employee.

Losing a job is a harrowing experience for anyone, and if you feel this was unfair, then it will probably sting even more. Unfair dismissal is a complex situation to deal with, but if you really have been dismissed unfairly then it is your right to seek compensation for the experience.

 

Frustrated cause for dismissal

There are a number of different ways in which a person can be dismissed from a company; unfair dismissal, wrongful dismissal, constructive dismissal and redundancy. We have an abundance of experience helping employees in unfair or constructive dismissal cases, redundancy claims, and other aspects of employment problems.

Before you start any proceedings,  ask yourself a few key questions to see if you are likely to be eligible to claim unfair dismissal.

These include:

Are you eligible to claim? Some workers will never be able to claim unfair dismissal, such as freelancers, contractors or the self-employed. People in the police, military and those working outside of the UK will not be able to claim either. You will also have needed to work for your employer for at least two years.

Have you been dismissed? There is a big difference between being dismissed and resigning, although if you have resigned because the employer made it difficult to do your job, then this can be viewed as constructive dismissal.

Was it automatically unfair? Unfair dismissal can be a contentious area, although in some cases it is very clear cut. If you were dismissed because you were pregnant, because you acted on a health and safety issue, because you tried to enforce a right you have under law or because you blew the whistle on a matter of public concern, then you automatically claim unfair dismissal no matter how long you have worked for the employer.

Was it otherwise unfair? There are a number of other reasons your dismissal may have been unfair that will need other worked out in a tribunal. These include being dismissed because you are too ill to do the job, because you lost your driving license, because you behaved badly or in situations where the employer did not follow the code of conduct.

Dismissal, Fired

Notice
You must be given at least the notice stated in your contract or the statutory minimum notice period, whichever is longer.
There are some situations where you can be dismissed immediately - eg for violence.
You have the right to ask for a written statement from your employer giving the reasons why you've been dismissed if you're an employee and have completed 2 years' service.
Your employer must supply the statement within 14 days of you asking for it.

Your employer must give you a written statement if you're dismissed while you are on Statutory Maternity Leave. You get this even if you've not asked for one, regardless of how long you've worked for your employer.

Reasons for your dismissal.

There are some situations when your employer can dismiss you fairly.

1. You may not be able to do your job properly if you haven't been able to keep up with important changes to your job or can't get along with your colleagues or by other reasons.
Before taking any action, your employer should follow disciplinary procedures (eg warn you that your work isn't satisfactory) or give you a chance to improve (eg by training you).

2. You can be dismissed if you have a persistent or long-term illness that makes it impossible for you to do your job. Before taking any action, your employer should look for ways to support you (eg considering whether the job itself is making you sick and needs changing), give you reasonable time to recover from your illness. If you have a disability (which may include long-term illness), your employer has a legal duty to support disability in the workplace.
Dismissal because of a disability may be unlawful discrimination.

3. Redundancy is a form of dismissal and is fair in most cases. If the reason you are selected for redundancy is unfair then you will have been unfairly dismissed.

4. You can be dismissed for 'gross misconduct' without your employer going through the normal disciplinary procedures (if, for example, you're violent towards a colleague, customer or property). Your employer should always investigate the circumstances before making a dismissal, even in possible gross misconduct cases.

5. A 'statutory restriction'. You can be dismissed if continuing to employ you would break the law - eg if you're a driver in a lorry firm and you lose your driving licence.

6. If it's impossible to carry on employing you, it's likely to be fair. For example, if a factory burns down and it's no longer possible to employ anyone.

7. A 'substantial reason'. You may be dismissed fairly if, for example, you unreasonably refuse to accept a company reorganisation that changes your employment terms or you're sent to prison

Unfair and constructive dismissal

In certain situations, you may be able to take legal action if you're dismissed.

Unfair dismissal, scheme

Unfair dismissal

Your dismissal could be unfair if your employer doesn't have a good reason for dismissing you or doesn't follow the company's formal disciplinary or dismissal process (or the statutory minimum dismissal procedure in Northern Ireland).

Situations of your unfair dismissal include if you:

  • asked for flexible working
  • refused to give up your working time rights - eg to take rest breaks
  • resigned and gave the correct notice period
  • joined a trade union
  • took part in legal industrial action that lasted 12 weeks or less
  • needed time off for jury service
  • applied for maternity, paternity and adoption leave
  • were on any maternity, paternity and adoption leave you're entitled to
  • tried to enforce your right to receive Working Tax Credits
  • exposed wrongdoing in the workplace (whistleblowing)
  • were forced to retire (known as 'compulsory retirement')

Compulsory retirement is not allowed unless your employer can objectively justify it, but you can challenge it at an employment tribunal.

Constructive dismissal

Constructive dismissal

Constructive dismissal is when you're forced to leave your job against your will because of your employer's conduct.
The reasons you leave your job must be serious, for example, they don't pay you or suddenly demote you for no reason, force you to accept unreasonable changes to how you work (eg tell you to work night shifts when your contract is only for day work), let other employees harass or bully you.
You should try and sort any issues out by speaking to your employer to solve the dispute.
If you do have a case for constructive dismissal, you should leave your job immediately - your employer may argue that, by staying, you accepted the conduct or treatment.

 

What to do if you're dismissed

If you're threatened with dismissal (or are dismissed) you can get help from a third party to solve the issue by mediation, conciliation and arbitration. You can also speak to your union representative if you're a member of a trade union.

 Dismissal, compulsory retirement, What to do

If you've been unable to solve a problem between you and your employer, you can normally go to an employment tribunal (In Northern Ireland, you can go to an industrial tribunal).

Dismissal, Dismissed, case

Qualifying period to claim unfair dismissal

You must have worked for your employer for a minimum period before you qualify for the right to claim unfair dismissal at a tribunal. If you're classed as an employee the qualifying period is normally 2 years (In Northern Ireland, the qualifying period is still normally 1 year).
There is no qualifying period if you've been dismissed from 25 June 2013 because of your political opinions or affiliation. You'll automatically have the right to go to an employment tribunal.

You should start the claim proceedings within three months of being dismissed otherwise you might not be able to claim at all. Your compensation award will usually be made up of a basic award, which is related to your salary and the amount of time you worked for the employer, and a compensatory award which is related to loss of earnings as a result of the dismissal.

How to claim unfair dismissal, Qualifying period

  You can find some useful resources on the topic of unfair dismissal at the resources below:

https://www.gov.uk/dismissal/unfair-and-constructive-dismissal
http://www.nidirect.gov.uk/unfair-dismissal

If you have worked through the questions and still think you have a case, it is a good idea to get advice from a specialist in the area of employment law to ensure you take the right course of action from here on in. We can help you put your case together and claim against your employer. Having our support at this early stage will have the best chance of a win.

 

 Å 01234 854055, 07428793410

 

 

Wrongful Dismissal