Unfair Dismissal – Employee’s perspective

Unfair Dismissal – the Employee’s perspective

Introduction

The three biggest features in our lives tend to be our families (our favourite!), our homes and our jobs. Losing even our jobs can be enormously stressful and upsetting and in some cases, where the employee is vulnerable or has simply been in the role for a long time, can give rise to a very real sense of bereavement and trauma. For this reason, every employee should know exactly what their rights are when it comes to being dismissed.

We don’t like to bore people with the law – ever – but there are a few definitions we need to be clear on from the start.

What is unfair dismissal?

Unfair Dismissal is a statutory concept. In other words, Parliament passed a law which created it. It didn’t exist 50 years ago and certainly, when the Paladins were roaming the countryside fighting for their version of truth and justice, there were no employment rights at all. These days, the pen is mightier than the sword (especially if the sword is very small and the pen very sharp, but we digress…). Unfair Dismissal law is found in the Employment Rights Act 1996.

The ERA defines a ‘dismissal’ as one of three things:

• Being actually dismissed by your employer – whether you are given notice or not;
• The expiry of a limited term contract, for example when a fixed-term contract comes to an end; or
• The employee resigning because the employer has seriously breached their contract. We call this “Constructive Dismissal”. We’ll do a separate blog on the complexities of constructive dismissal in the next few weeks…

However, before we can decide if a dismissal is unfair, we need to check:

• time limits– generally the employee must bring an Employment Tribunal claim within 3 months less 1 day of the date of termination;
• employment status– whether the ‘employee’ is actually an employee or not. Unfair Dismissal only applies to employees;
• qualifying period– there are a few exceptions, but generally an employee does not acquire the right not to be unfairly dismissed until they have been continuously employed for 2 years;
• real reason– whether the actual reason for the dismissal is potentially fair – known as a ‘substantive’ reason; and
• reasonableness– whether the procedure and decision to dismiss were actually fair in all the circumstances.

At Paladin, we are pre-eminent in identifying, challenging and winning Unfair Dismissal claims. And we don’t mess around sitting on the fence or make nonsense statements like “You have a 55% chance of success”. Unless it is genuinely a borderline case, we will tell you whether you will win or lose. Feel free to contact usfor a free no-obligation discussion about your situation.

Meanwhile, and as a basic check whether you are likely to be able to do anything to challenge your dismissal, you can work through these 4 questions:

Have you actually been dismissed?

This may sound like an odd question but it is obviously crucial, and sometimes there can be real doubt over whether there has been a dismissal or not. You can only challenge a dismissal if it actually happened.

You’ll need evidence that you were dismissed. Ideally, this will be an official termination letter or email from your employer. But we can work with anything. At the end of the day, if the only evidence you have of being dismissed is that your employer told you, out of the earshot of anyone else, “You’re sacked!” that is still evidence. We will help you prove it.

You generally haven’t been dismissed if you’ve been suspended or have resigned by choice. But ‘choice’ is the operative word here – if you have been pressured into resigning somehow, that may well also be a dismissal. So get some advice from us.

What was your status?

Your employment status means whether you’re an employee, a worker (which is another statutory concept) or self-employed. To be an employee you’ll need to show that there was a contract of employment. This doesn’t have to be a written document. It can be a verbal agreement or simply implied by conduct i.e. you turned up every day, did some tasks and got paid once a week: probably = employment.

What we are looking for as a minimum is a requirement for you personally to do the work; an expectation that the work would be made available for you by your employer; and an expectation that you will do the work made available for you by your employer.

It doesn’t matter if you were part-time or on a limited (fixed)-term contract. You can still be an employee in these circumstances. Unfortunately, you don’t have any rights to challenge your dismissal if your status is:

• self-employed;
• an agency worker or other ‘worker’; or
• a police officer or in the armed forces.

Actually, nor if you are one of the following – but we don’t see many of these!

• a registered dock worker;
• working overseas or for a foreign government; or
• a share fisherperson.

Do you have enough continuous service?

This can be a misleading question actually, but it is very important to consider. Just don’t let the answer stop you getting proper advice.

Generally speaking, an employee must have two years’ continuous employment (employment without any breaks in service) before acquiring the right not to be unfairly dismissed. It really is as binary as that. If your date of termination falls on a Tuesday and that was your 1 year and 364thday, you cannot claim. If you are dismissed on the Wednesday morning, happy days – you are protected!

However, there are a number of reasons for dismissal which are regarded as sufficiently improper that the law actually ignores this 2-year rule. So, for example, if the real reason you were dismissed was that you made what is known as a “protected disclosure” i.e. you were a whistleblower, you are protected from being unfairly dismissed even if that happened at the end of your first day. Other exceptions include those relating to:

• trade union membership;
• being an employee representative or pension trustee;
• jury service;
• raising health and safety concerns;
• asserting rights under the Working Time Regulations;
• asserting rights under the National Minimum Wage legislation;
• exercise of maternity or other family leave rights; and
• exercise of other statutory rights.

This is an area where you really would benefit from expert advice. We are extremely adept at identifying the various more sinister reasons that employers might dismiss their employees and pursuing them to the fullest extent possible. Often, if the situation just feels wrong that is a good indication that it is wrong and something else is going on. Speak to us.

Were you dismissed for a potentially fair reason?

If you were continuously employed for at least 2 years, your employer has to tell you why they dismissed you. They have to give you written reasons. The same applies if you were dismissed whilst pregnant. We can help you obtain these or bring a claim if your employer refuses to give them to you.

Whether you are given reasons or not, an Employment Tribunal is only interested in the realreason for your dismissal. This is because there are only 5 ‘substantial’ i.e. potentially fair reasons for dismissal and if you were dismissed for a reason other than one of these, your dismissal was unfair:

Conduct: you’ve broken your contract or a workplace rule or done something else which the employer considers to be inappropriate – this can be a series of issues or one really serious issue known as ‘Gross Misconduct’;

Capability: you’re not capable of doing your job – for example, because your performance is poor or your health is preventing you from working enough;

Statutory prohibition: there’s a legal reason why your employer can’t keep you on, often that you’ve lost the right to work in the UK but it could be something else;

Redundancy: there has been a cessation or reduction in the need for employees to do work of a particular kind, or the workplace has closed down;

Some other substantial reason (often abbreviated to “SOSR”) – your employer has another really good business reason not covered above. A good example would be that you won’t agree to new contractual terms which they really need to put in place.

As we said, if the real reason is not one of these then you were unfairly dismissed – it is as simple as that. Some other reasons are expressly stated by the law to be “automatically unfair” but the reality is, any dismissal for a reason not covered about is automatically unfair. The automatic unfairness provisions exist to ensure that there is clarity over what employer can – and can’t – argue under the heading of SOSR. It’s ‘automatically unfair’ if you’re dismissed because you:

• are pregnant or on maternity leave;
• have asked for your legal rights at work;
• took action about a health and safety issue;
• work in a shop or a betting shop and refused to work on a Sunday;
• are a trade union member and took part in trade union activities including official industrial action or you were acting as an employee representative; or
• have reported your employer for wrongdoing, which is called whistleblowing;
• the business was transferred to another employer; or
• you didn’t declare a spent conviction.

Your employer can still dismiss you if you’re in any of these categories – but it can’t be the reason for your dismissal.

You can also challenge your dismissal if it’s because your employer has discriminated against you. It might be discrimination if you think you were dismissed because you’re:

• pregnant or on maternity leave;
• from a particular race, ethnicity or country;
• married or in a civil partnership;
• a man or a woman;
• disabled;
• lesbian, gay, bisexual or trans (LGBT), or seen to be;
• have a particular religion or set of beliefs;
• older or younger than the people you work with;

Again, your employer can still dismiss you if you’re in any of these categories – but it can’t be the reason for your dismissal. In fact it can’t be any part of it whatsoever.

Was the dismissal fair in all the circumstances?

This is the ultimate question and one which we cannot sensibly address in this blog. We’ll be breaking it down and discussing the various types of fair dismissal in future blogs. In simple terms, however, an Employment Tribunal will ask itself whether the employer followed a reasonable process in dismissing the employee. Answering that question will require close scrutiny of: the reason replied upon; the extent to which the employer engaged in discussing the reason with the employee, including letting them make representations about the proposal to dismiss them; and whether there were any alternatives to dismissal.

We are experts at challenging Unfair Dismissals. We are particularly adept at uncovering ulterior reasons and motives and proving bad faith. So if you think you might have a case, please do give us a call to discuss it further on a free and no-obligation basis.

Fiercely protecting you, your livelihood and those who depend on it.

That’s the Paladin way.