What is unfair dismissal?
Unfair dismissal is when the employer does not have a good reason for dismissing you or; they have not followed the company’s formal disciplinary or dismissal process.
Most employees who have at least two years’ continuous service are entitled not to be unfairly dismissed. However, there are exceptions to this rule. If an employee is able to establish an unfair or discriminatory reason for their sacking, in most cases, there is no qualifying service period.
An employee who is unfairly dismissed can seek compensation from an employment tribunal.
If you were dismissed because you asked for flexible working, refused to give up your rights such as having a lunch break during working hours, joined a trade union, needed time off for jury service, applied for maternity or paternity leave, exposed a wrongdoing, were forced to retire or resigned and gave the appropriate notice period, then you have a strong case for an unfair dismissal claim.
Employers must follow a formal disciplinary or dismissal process. If you feel that your employer has failed to do so, get in touch with our unfair dismissal and redundancy solicitors for employees to see if you can make a claim. We have experience in dealing across multiple industries and job roles and are here to help.
Prescribed reasons for unfair dismissal
A dismissal is automatically unfair if it is for one of a number of prescribed reasons, including whistleblowing, health and safety activities or pregnancy and maternity leave. This applies to all employees, no matter how short their period of employment. Protection against all forms of discrimination also applies from the time you make an application for a job to after you have left and are reliant on a reference.
Notice period
If an employee’s contract of employment does not specify a notice period, they are entitled to a reasonable period of notice if dismissed. In any case, the employee is entitled to at least the statutory minimum notice period of one week after one month’s employment. After this, entitlement increases at the rate of one extra week per year, to a maximum of 12 weeks after 12 years’ employment.
If you are dismissed without the right notice, this is wrongful dismissal and our employment lawyers can advise on any compensation claim you might be entitled to.
Breach of contract
If you believe your employer has breached your contract, we can advise you on the most appropriate action to take. For example, an employee can claim constructive dismissal if their pay is reduced without agreement or they are told to resign.
What is constructive dismissal?
Constructive dismissal occurs when you are forced to resign due to your employer creating a hostile work environment. For example, if your employer refuses to pay you, demotes you unfairly or for no reason, tries to force you to accept unreasonable changes in the way you work or allows for you to be harrassed and bullied, you can claim for constructive dismissal after choosing to leave your job.
Can redundancy be unfair dismissal?
Yes, redundancy could be considered anunfair dismissal. There are a number of reasons why redundancy might be an unfair dismissal, such as ‘automatically unfair reasons’ such as being made redundant because you asked for one of your rights to be exercised at work; took action about a health and safety issue or even if the correct process for redundancy wasn’t followed by your employer.
If you feel you have been made redundant due to discrimination, for example being made redundant because you felllpregnant, or because of your gender, race or disability, then your redundancy may also be claimed as an unfair dismissal.
How long after redundancy can you claim unfair dismissal?
To claim for unfair dismissal after redundancy, you must take your claim to an employment tribunal within three months of being made redundant.
Redundancy pay
Employees who are made redundant are only entitled to claim redundancy pay if they have at least two years’ continuous service. Tax is not payable in respect of statutory redundancy pay.
In general terms, being made redundant means that the job will have disappeared. Also, the employer must select employees for redundancy on a fair and objective basis, after reasonable consultation and with adequate notice.
If you have been unfairly dismissed by means of redundancy, our employment law experts can advise you of your rights and what action to take.
TUPE transfers
If you feel that you have been unfairly dismissed because of a transfer of business, you should try and raise the matter by way of your employer’s internal procedures. If this doesn’t resolve the issue, you ultimately have the right to complain to an employment tribunal if you have been employed continuously for two years or more.
If you were employed immediately before the transfer (or if you would have been had you not been unfairly dismissed for a reason connected with the transfer) you have automatically become an employee of the new employer, unless you objected to being transferred and informed either employer. Your continuity of employment is not broken, and you keep all the rights and obligations that you had under your contract of employment with your previous employer.
Transfer Opt-out
Employees can refuse to transfer (or “opt-out”), but depending on the circumstances of the case, they may lose valuable legal rights if they do. The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) state that “all the transferor’s rights, powers, duties and liabilities under or in connection with the transferring employees’ contracts of employment are transferred to the transferee”.
This all-embracing concept encompasses rights under the contract of employment, statutory rights and continuity of employment and includes employees’ rights to bring a claim against their employer for reasons including unfair dismissal, redundancy or discrimination, unpaid wages, bonuses or holidays and personal injury claims.
Our Employee Lawyers can advise employees on their rights under the TUPE provisions and can assist with any claims of unfair dismissal that may arise as a consequence, as well as a wide variety of other legal issues including discrimination claims such as age discrimination or racial discrimination, contract issues, employment tribunal claims, flexible working and parental rights and more.
Get in touch
For further information or advice please call 01753 889995 or email our employment lawyers at enquiries@bpcollins.co.uk. If you are an employer looking for legal advice relating to unfair dismissal and redundancies, please see our dismissal advice for employers page.
