Unfair Dismissal – How to check if your dismissal was unfair.

Unfair Dismissal – How to check if your dismissal was unfair.

Recently a case was brought forward seeking unfair dismissal by an individual who was dismissed two days before her two-year work anniversary without the statutory notice period of one week, which would have taken her over the two-year threshold. The claimant argued that the notice period should be granted and therefore claimed unfair dismissal. The respondent in this case, the employer, firmly disagreed and advised the claimant was not entitled to statutory notice because she was dismissed for gross misconduct.

In accordance with the Employment Rights Act (ERA) 1996, the tribunal concluded that the statutory notice had to be included in calculating for unfair dismissal purposes. However, applying s86(6) of the ERA preserved the right to terminate without notice, which includes without a statutory notice period.

With no wrongful case brought to the tribunal of gross misconduct against the claimant, the case was remitted for further findings to be given. 

Employers can dismiss people, however as the case above shows, the employer must have strong evidence and reason before dismissing an employee, but how can you check if your dismissal was unfair? 

What to consider if you think you have been unfairly dismissed

There are three fundamental questions to ask to find out if your dismissal is unfair.

• What is your current employment status?

Your rights depend on whether you are an employee of the company or not.  If you are self-employed, an agency worker, a police officer or in the armed forces, registered dock work, working overseas for a foreign government or a share fisherperson then, unfortunately, you do not have any rights to challenge your dismissal.

• The length of time you have worked for your employer.

Generally, you can only challenge a dismissal if you have been employed for two years or more with the said company.

• You’ll also need to check if the law states the reason of your dismissal was unfair.

The Evidence

You need to show and prove that the dismal happened as only then can you challenge the dismissal. The evidence needed will be in the form of an official termination letter, this can include emails or text messages from your employer.

If your employer has either ended your contract (with or without notice), refused to renew your fixed- term contract, made you redundant which includes voluntary redundancy, dismissed you for going on strike or stopped you coming back after maternity leave, then you have been dismissed.

If you have been suspended or have resigned by choice, you have not been dismissed. 

The law states its unfair to be dismissed because of an ‘automatically unfair’ reason or discrimination. You will be advised by your employer the reason for your dismissal. If your dismissal is for any of the following reasons, then it is ‘automatically unfair’:

• Pregnant or on maternity leave
• Have asked for your legal rights to be met
• Acted against a Health and Safety issue
• Work in a shop or betting shop and refused to work on a Sunday
• Are a trade union member who took part in trade union activities
• Whistleblowing, you have reported your employer for any wrong doing.

It’s also automatically unfair if you have been employed for at least two years and the business is transferred to another employer or you didn’t declare a spent conviction.

Discrimination means you have have been dismissed for the following reasons:

• Pregnant or on maternity leave
• Race, ethnicity or country
• Married or in a civil partnership
• A man or a woman
• Disabled
• Lesbian, gay, bisexual or transgender – or seen to be
• Region or set of beliefs
• Age

 

You only have three months, less a day from when you were dismissed to challenge the decision, so you need to understand the reason why you have been dismissed and check if it falls into one of the above categories for further action to be taken.

If you think you have been dismissed unfairly we can help. Please remember there are strict time limits in Employment claims and you should take legal advice as soon as possible.

In addition to No Win No Fee, Lawson-West solicitors act for clients on a variety of other funding arrangements including Legal Expenses insurance funding. We can assess your case to decide which is the best funding option for you.

With offices in Leicester, Wigston and Market Harborough our employment solicitors and lawyers can discuss your employment law claim at any of our branches. In addition, we are a national provider of expert employment law advice and welcome a free discussion with you regarding your circumstances and potential claim. Call 0116 212 1000 for more information.

If you believe you have a situation where you require free legal advice, please contact us on telephone 0116 212 1000 or 01858 445 480, alternatively fill in our Contact Us form and we will get in touch as soon as possible.

View all