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Employment Law Solicitor
Sarah Cruice 0114 253 6547 | email Sarah View Sarah's profile |
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Subject to a few exceptions, most employees with more than 12 months’ continuous service have the right not to be “unfairly dismissed”. In certain circumstances, some employees with less than 12 months continuous service may also have that right. |
Employers wishing to dismiss employees can only do so for one of the following six potentially ‘fair reasons’:
- Misconduct;
- Capability;
- Redundancy;
- Illegality (i.e. to continue with the contract would involve the commission of a criminal offence, for example a lorry driver continuing to drive after losing his licence or employing a person without a valid work permit);
- Retirement*; or
- Some other substantial reason (a “catch all” phrase designed to catch miscellaneous dismissals which do not appear in the other reasons but are nonetheless fair).
* Please note that the law in this area is currently changing and retirement as a fair reason for dismissal is being phased-out. It is strongly recommended that you take specific advice on any retirement issues.
In addition to identifying a fair reason, the employer must also demonstrate that it acted reasonably in treating that reason as sufficient to justify dismissal.
If the employer fails to establish that the reason for the dismissal was one of the six potentially fair reasons, or that it acted reasonably in treating that reason as sufficient to justify dismissal, then the dismissal will be unfair and the employee will be entitled to be compensated for any loss incurred as a result of the unfair dismissal.
Procedure
Employers must also ensure that they follow a fair procedure when dismissing employees.
Employers are expected to have regard to the ACAS code on disciplinary and dismissal procedures, and tribunals will have a discretion to uplift compensation by up to 25 per cent to penalise employers who fail to do so.
Constructive Dismissal
Employees who resign in response to a serious breach of contract on the part of their employer may be entitled to resign and claim that they have been constructively dismissed.
By way of example, if an employer suddenly cut an employee’s hours or wages with no prior discussion or agreement, or if an employee was continuously bullied or undermined at work, they may have a valid claim for constructive dismissal.
Currently, before the employee could bring such a claim in the employment tribunal, the employee must first raise a formal grievance with the employer and the employer must respond to appropriately.
A successful constructive dismissal claimant would receive compensation for any loss incurred as a result of the unfair dismissal.
Automatically unfair dismissal
Dismissals on certain grounds are deemed to be automatically unfair.
Examples of dismissals which are deemed to be automatically unfair are:
- Dismissal for reasons related to pregnancy, childbirth, statutory maternity, paternity, adoption, parental or dependant care leave or in connection with making an application for flexible working;
- Dismissal for making a protected disclosure (i.e. whistleblowing);
- Dismissal for reasons relating to part-time or fixed-term worker status;
- Dismissal for raising a health and safety concern;
- Dismissal for a reason related to a TUPE transfer; and
- Dismissal where the employer has not complied with a relevant statutory disciplinary and dismissal procedure.
Depending upon which reason applies, the employee may or may not need 12 months’ continuous service to be eligible to bring a claim.
In most cases of automatically unfair dismissal, there is no limit of the amount of compensation that can be awarded.
Discrimination based dismissals
Workers are protected from being subjected to discrimination on the grounds of sex, race, age, religion or belief and disability.
It is important to note that self employed contractors are also protected by discrimination legislation.
If a worker can show that they have been dismissed for a discriminatory reason, they will be entitled to bring a claim in the employment tribunal to compensation for loss of earnings. They may also be awarded compensation for injury to feelings, as well as in respect of any psychiatric damage suffered as a result of the discrimination (i.e. stress or depression).
There is no limit to the amount of compensation that can be awarded in discrimination claims.
We are experienced in advising both employers and employees about all unfair dismissal matters.
If you are an employer who is contemplating dismissing an employee for whatever reason, or if an employee has recently resigned indicating that this was because they were not happy at work, please contact Sarah Cruice, employment solicitor, on 0114 253 6547 or at sarah.cruice@ironmongercurtis.com who will be happy to advise and assist you through this process.
If you are an employee who has recently been dismissed and you feel that you have been unfairly treated, or if you have resigned because of something your employer has done or failed to do, please contact us on 0114 253 6559 and we will be happy to advise you as to your rights. Please note that you must bring most employment tribunal claims no later than three months from the date of dismissal so do not delay in seeking advice!
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