Losing your job can be very distressing. The situation is even more frustrating if you feel that your employer was unfair when they dismissed you. If you were dismissed without a just reason then it may be possible for you to take your former employer to a tribunal, and claim compensation.
Here, Mike James – working with George Ide looks at some of the different ways that you could be dismissed and whether they would be deemed unfair or not.
Two years of service
To bring a claim for unfair dismissal you generally need to have worked for a company for at least two years. However, there are some exceptions to this rule where you can bring a case after any period of time. This could be where you have been dismissed due to any form of discrimination, as a result of taking maternity leave or going on strike, or if proper rules were not followed when you were dismissed (for example, the specified period of notice not being given). Equally, a business cannot legally dismiss you for whistleblowing or for doing something that is your legal right.
Once you have had two years of service you can bring a claim forward for cases of unfair dismissal on matters that are not ‘automatically unfair’. This could where your employer has accused you of misconduct, poor performance or says that your position has become redundant.
It should be noted that not all cases of unfair dismissal are simple. In fact it is often the case that on the surface the employer has done nothing wrong and the employee has simply left the job. However, it is common for there to have been circumstances were the employee was effectively pressured into resigning and this is known as ‘constructive dismissal’.
There are many ways that this could have taken place but often employers will use tactics such as cutting an employee’s pay, changing the role or the working conditions so that the position becomes untenable, or taking away all of the employee’s work and giving it someone else.
Circumstances can often be hazy but any situation where you feel you have to leave a job because of the actions of either your employer or colleagues can count as constructive dismissal. This is also true of inaction on the part of your employer.
What counts as fair dismissal?
As was mentioned before, some dismissals (for example on the grounds of race or gender) are considered ‘automatically unfair’ but there are many situations where certain forms of dismissal are fair. One example of fair dismissal occurs if you are incapable of doing the work that is set out in your contract. Another would be if you become unqualified to hold the position.
Equally if you breach the terms and conditions set down in your contract – for example through an act of gross misconduct or doing something illegal – you can be fairly dismissed. Many actions could count as gross misconduct, for example harassment of staff, breaching health and safety rules or drinking during work hours.
It is up to your employer to prove that they have fair reason to dismiss you and that they acted reasonably. For example, it could be the case that many other members of staff were not dismissed for acting in the same way, and your behaviour was simply singled out as an excuse.
Take legal advice
As the circumstances surrounding someone’s dismissal from a position can often be complicated, it is an excellent idea to get legal advice on whether your dismissal was unfair or not. An experienced solicitor will be able to provide you with an impartial and honest assessment as to whether your employer acted unfairly and if you are likely to be able to win a case. Acting as soon as possible gives you the best chance to be successful so don’t delay you discussion.