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When is a dismissal unfair?

By GUEST BLOGGER Published 30th Mar 2016
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Recognising Unfair Dismissal

If you have been dismissed from your place of work it is vital that you know whether or not you have been treated fairly. Losing your job can be a traumatic experience and many employees are simply unaware that there are rules and regulations in place that cover dismissals and how your employer should behave in such circumstances.

Here we will look into circumstances where dismissal would be deemed unfair in order to give you a better idea of when your employer can dismiss you and when they cannot.

What is unfair dismissal?

Unfair dismissal is when you have been told by your employer that your employment will come to end but the reason why the employment has been terminated is not valid. They must also be able to demonstrate that they have acted reasonably in the circumstances and have been consistent in their disciplinary action.

If you feel as though you have been unfairly dismissed, there may be an opportunity for you to take legal action against your employer. Firstly, however, it is important that you establish whether or not you have indeed been dismissed unfairly. The two key points to remember are that your employer must:

a) Have a valid reason for why they are terminating your employment.

b) Have followed their own company rules with regard to their formal dismissal or disciplinary process and the ACAS Code of Conduct.

There are also different situations in which your dismissal could be deemed to be unfair. These include:

  • A situation where you may have asked for a more flexible way of working.
  • If you have refused to give up any breaks that you are entitled to, otherwise known as working time rights.
  • When you have already resigned from your position and provided your employer with the correct notice period.
  • If you have decided to join a trade union.
  • If you have been involved in a bout of industrial action that is legal and lasted for 12 weeks or less.
  • If you required time off to perform jury service.
  • If you asked for time off for any maternity, paternity or adoption leave that your contract says that you are entitled to.
  • If you were already on maternity, paternity or adoption leave that you were entitled to.
  • If you tried to claim your right to receive Working Tax Credits.
  • If you highlighted or exposed any illegal or dishonest behaviour in the workplace, otherwise known as whistleblowing.
  • A situation where you were forced into retirement, otherwise known as compulsory retirement. While this is allowed in some instances, employers must be able to objectively justify their actions. You can, however, challenge their decision at an employment tribunal if you so wish.

Should your employer have failed in any of the above areas, you may have an opportunity to claim unfair dismissal. There are a number of ways that this can be handled, from employment tribunals through to settlement agreements. The route that you decide to go down will largely be dependant on your own individual circumstances and whether or not you already have representation at work.

You must, however, had worked for your employer for a minimum period before you can claim for unfair dismissal. This is generally two years when employment began although there are some exceptions.

Claims for a tribunal must be made within three months of being dismissed, although this is subject to the period for early conciliation with ACAS.

Maria Calvy LLM is the founder of Archers Law (Solicitors), a niche practice specialising in employment law and litigation advice for both private practice and the public sector.

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Published 30th Mar 2016
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