Published 2nd September 2020
Being dismissed from your job role can be devastating and can often feel unfair. If you believe your employer has dismissed you unfairly then you may be entitled to challenge your dismissal.
In order for a dismissal to be fair, your employer must;
- Have a good reason for dismissing you
- Follow the company’s formal disciplinary or dismissal process (check the company handbook)
If your employer does not have a good reason for dismissing you or they do not follow a fair process you may have been dismissed unfairly.
You must check the following to ensure your dismissal was unfair;
- Check what your employment status is because your rights can be different depending on whether you are an employee, worker (e.g agency worker) or self-employed
- Check the length of time you have been working for your employer because a straightforward dismissal can usually only be challenged if you have worked there for 2 years or more
- Ensure it has not been longer than 3 months minus a day from the date you were dismissed as this is the time limit to take action.
You must have actually been dismissed and be able to show evidence of such dismissal either by termination letter, email or text message (where possible). Therefore, you have been dismissed if your employer has done one of the following acts;
- ended your contract of employment, with or without notice
- refused to renew your fixed-term contract
- made you redundant, including voluntary redundancy
- dismissed you for going on strike
- stopped you from coming back to work after maternity leave
Your employer should always tell you why they are dismissing you. The law states that it is always unfair and such dismissal can be challenged if you were dismissed because of an “automatically unfair reason”.
You don’t have to have worked for your employer for 2 years to challenge an automatically unfair dismissal or if you were discriminated against.
It is automatically unfair to dismiss someone for a reason connected to;
- pregnancy, childbirth or parental leave rights
- if you have asked for your legal rights at work, eg to be paid minimum wage
- health and safety
- refusal to work on a Sunday (shop or betting shop workers)
- being a trade union member and you took part in trade union activities including official industrial action or you were acting as an employee representative
- being an elected representative as part of TUPE of collective consultations
- performing functions under an occupational pension scheme as a trustee or auto-enrolment
- taking leave for family emergencies or to care for dependants.
- Seeking to exercise the right to flexible working
- Because you are part-time/ zero hours
- Carrying out jury service
- Breach of exclusivity clause as a zero-hours worker
If it is found to be automatically unfair the procedural errors will no longer matter. If you can link one of the above reasons to your dismissal not only do you get around the 2 year rule you also have a simpler claim to prove in the tribunal as the tribunal will not look at the motive or whether it was reasonable, as they would look at in an ordinary unfair dismissal claim where a fair reason must be established.
Five fair reasons
Where it is not an automatic unfair dismissal, there are 5 lawful reasons for an employee to be dismissed; therefore, it might be fair if your employer dismisses you because;
- You are being made redundant
- If there was a concern for your capability or qualifications for the job
- If a statutory duty or restriction prohibited your employment from continuing
- Reasons relating to your conduct e.g. breaking the law/ gross misconduct
- Another ‘substantial’ reason – although this is not set out in law it means that your employer can show another valid reason in addition to the 4 above
For each potentially fair reason, certain procedures are required to be followed, and the tribunal will assess whether the decision to dismiss was a reasonable one, if not then an employee may be to argue that the dismissal is procedurally and substantively unfair. Employees without two years’ qualifying service will not be able to bring ordinary unfair dismissal claims.
At Thrive we can assist you with a claim for unfair dismissal, whether ordinary or automatic::
Please send an email to firstname.lastname@example.org
- with a chronology of the events leading up to your dismissal
- whether you have legal expenses insurance on your home insurance for employment claims
- copies of dismissal and appeal documents
- a recent payslip
and one of our expert lawyers will assess your case for FREE setting out your options to move forward.