An employer must use a fair and reasonable procedure to decide whether to dismiss someone. Any employer is allowed to dismiss its employees, however, if this is done for an unfair reason or without a fair process, then you may be able to claim for unfair dismissal.
Your dismissal may be unfair if your employer doesn’t:
- Have a good reason for dismissing you
- Follow the company’s formal disciplinary or dismissal process or otherwise follow a fair process in the dismissal.
What is a fair reason for dismissal?
To bring a claim for unfair dismissal, the reason for your dismissal must be considered unfair as per the Employment Rights Act 1996. Under this act, employees have a right not to be unfairly dismissed under section 94, therefore, an employer must show a ‘fair’ reason and how they acted reasonably in dismissing for that reason.
Examples of potentially fair reasons include;
- Conduct
- Capability or qualifications to do the job
- Redundancy
- Statutory enactment (e.g. when a lorry driver loses his driving licence.)
- Some other substantial reason
What is a fair process?
Employers must follow a fair procedure when dismissing an employee who has over 2 years’ service. A disciplinary and capability procedure will make it easier for the employer to manage the situation, it ensures that the process is standardised, employees are aware of the process and know what to expect when involved in these kinds of investigations.
The fair process for dismissal will depend on the reason for the dismissal:
- If an employee is dismissed for a reason relating to a disciplinary or capability issue, then the employer must follow the process they have outlined in their handbook. If there is no such procedure (although we would stress this should be in place), the best place to find guidance on such a process is Acas.
- If an employee is dismissed due to redundancy, a full redundancy process should be undertaken, with full consultation on the nature of the redundancy and suitable alternatives.
Overall, any fair process will be transparent and impartial. It’s also important that the dismissal is not predetermined; in any process which may end in dismissal (especially in a redundancy scenario), there must be genuine consideration and engagement with suitable alternatives or lesser sanctions, avoiding dismissal.
Who can claim unfair dismissal?
Only employees have the right to claim unfair dismissal. This includes part-time and fixed-term employees. Workers and self-employed individuals cannot claim unfair dismissal. Read more about employment status here.
To be eligible to bring a claim for unfair dismissal you must:
- Be an employee
- Must have worked for your employer for over 2 years
- Have been dismissed for an unfair reason or as part of an unfair process
- Ensure it has not been longer than 3 months minus a day from the date you were dismissed.
Can I claim unfair dismissal before two years’ service?
Ordinarily, you can usually only challenge a dismissal if you have two years or more service with the organisation, known as the ‘qualifying period’. However, certain types of dismissal are deemed ‘automatically unfair’. An automatically unfair dismissal means an employee’s statutory legal rights are considered to have been breached because of the dismissal, whether or not the employer has acted reasonably through the dismissal process.
For example, it’s automatically unfair if you’re dismissed because you asked:
- for a written statement of your terms of employment – you should get this by the day you start work
- to work a maximum of 48 hours each week
- for weekly and daily rest breaks
- for some types of family or care leave – for example, paternity leave
- to work part-time or flexibly
- to take paid holiday
You also have statutory rights surrounding your pay. It’s automatically unfair if you’re dismissed because you asked:
- for an itemised payslip
- to be paid at least the National Minimum Wage
- not to have illegal deductions made from your pay
How long do I have to make a claim?
To bring a claim for unfair dismissal and automatic unfair dismissal, you have only three months less one day from the date your contract was terminated.
NOTE – this is not from your appeal date as this does not extend your time limit. The relevant date is from the date of your dismissal.
Take early legal advice as soon as you are dismissed, or if you think you may be dismissed, to ensure you are well-positioned to develop your case in good time.
How can Thrive help
If you have read the above and think you have been unfairly dismissed please do get in touch at enquiries@thrivelaw.co.uk or utilise our live chat function on our website. We offer a free initial assessment of your case, reach out to our team today.
Disclaimer
Please note this blog is for reference purposes only and is only accurate at the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions on enquiries@thrivelaw.co.uk.
