When Is a Dismissal From Work Unfair?

Being sacked or dismissed from your job can come as a huge shock and it will inevitably bring with it a great deal of worry, particularly about money or whether your dismissal could have a negative impact upon your future employment prospects.

Being dismissed often feels unfair but in order to be successful in a claim for Unfair Dismissal to the Employment Tribunal your case must meet very strict criteria which are set out in the Employment Rights Act 1996.

Fair Reasons for Dismissal

Your employer is allowed to dismiss you so long as they do it fairly. There are five reasons for a fair dismissal which your employer can rely upon:

1. Poor conduct;
2. Lack of capability or qualifications;
3. Redundancy;
4. A statutory duty or restriction that forbids employment from continuing— for example if you a delivery driver who loses their driver’s license; or
5. Some other substantial reason that explains the dismissal.

Do you qualify?

If you don’t believe that your employer has dismissed you for a fair reason you can always challenge your dismissal but first of all you will need to check the following:

1. Whether you are actually an employee. For example, if you are a self-employed contractor or an agency worker you won’t necessarily have the same rights as a core employee.
2. Whether you have worked for your employer for long enough. This is because unless you have been dismissed for one of the automatically unfair reasons, you will need to show that you have worked for your employer for a continuous period of at least 2 years.

Automatically Unfair Reasons for Dismissal

Remember that if you are dismissed for any of the automatically unfair reasons, the 2 year qualifying period will not apply to you.

Examples of automatically unfair dismissals include if you were sacked because you are pregnant, you joined a Trade Union, you took Paternity Leave, for whistleblowing, you refused to give up a right under the Working Time Regulations 1998 or you exercised your right to receive the national minimum wage.

Discrimination is also automatically unfair and your employer is not allowed to treat you unfairly because of your sex, sexual orientation, age, gender reassignment, disability, race, religion or beliefs, your marriage or civil partnership or because you are pregnant.

The Disciplinary and Dismissal Process

Your employer must follow a formal and fair disciplinary or dismissal process. This includes telling you exactly why you are being dismissed and they should provide you with a written explanation setting out their reasons. If you haven’t had this you should ask your employer to provide this in a letter or an email.

Appealing against your Dismissal

Your employer should also provide you with the opportunity to appeal against your dismissal. The letter confirming your dismissal should set out exactly how to appeal and the deadline for appealing. If you haven’t received this information ask your employer for it and also request a copy of your Employer’s Disciplinary and Dismissal Procedure.

It is very important that you appeal your dismissal before taking any formal action in the Employment Tribunal, even if you don’t believe that your employer will change their decision.

The appeal should be heard by someone not involved in the initial decision to dismiss you and this person should, if possible, be more senior to the person who made the initial decision.

The outcome of your appeal should be communicated to you in writing.

The Deadline for making a claim to the Employment Tribunal

If your appeal is unsuccessful you will be on a very strict deadline to apply to the Employment Tribunal.

You only have 3 months less a day from the date your employment was terminated to start taking action for unfair dismissal.

Early Conciliation

Before applying to the Employment Tribunal you will need to make an attempt at Early Conciliation via an organisation named Acas. This is a way of trying to resolve the dispute without you having to resort to making a tribunal claim.

Whilst Early Conciliation is ongoing the clock ticking up to your tribunal deadline stops. Ultimately if Early Conciliation doesn’t resolve the dispute the time taken by Acas is added to the deadline.

Don’t be tempted to try to skip the Early Conciliation stage as the Employment Tribunal will ask for proof of this in the way of an ACAS certificate.

Employment Tribunal Claim

If Early Conciliation isn’t successful the final way you can challenge your dismissal is by making a claim for Unfair Dismissal to the Employment Tribunal who will determine:

• Whether your employer had a potentially fair reason for dismissing you; and then
• If your employer acted reasonably in dismissing you for that reason.

Remedies

If the Employment Tribunal finds that you were unfairly dismissed, it will then decide what remedy to award. The remedies available from the tribunal are:

• Reinstatement;
• Re-engagement; or
• Compensation.

Here at Progression Solicitors we understand how difficult being dismissed from work can be. Therefore we offer free initial 30 minute advice appointments to assess your specific circumstances. We can then determine whether you have a potential claim for unfair dismissal. If you would like to make an appointment with us please call 01229 580 956.