Elements of Unfair Dismissal

Elements of Unfair Dismissal

Do I have an Unfair Dismissal claim?
At Adam Bernard Solicitors, our employment law experts are commonly instructed for unfair dismissal claims. Unfair dismissals occur regularly, and it is essential that all employees understand their rights during dismissal and whether they qualify to pursue an Employment Tribunal Claim for Unfair Dismissal. Understanding your employment rights means you can act quickly to ensure the best outcome for yourself and receive appropriate damages and compensation for the dismissal. We have broken down the different aspects of an unfair dismissal into simple terms.

Who can make an Unfair Dismissal claim?

To make an unfair dismissal claim you must be a ‘qualifying employee’. The first requirement is that you must be an employee. The second requirement is that you must have worked for the same employer for a period of minimum two years. Your position can change during your employment so long as you are still working for the same employer, you can evidence a continuous employment for two years. This means being promoted or demoted does not affect your qualifying period. If you have worked for the same employer for 2 years or more, you can potentially pursue an unfair dismissal claim.

If you have not been employed for 2 years, you may be able to bring an automatic unfair dismissal claim. For more information, see our blog post on automatic unfair dismissal claims.

You must bring your unfair dismissal claim to the Employment Tribunal within the 3-month minus one day time limitation. If you do not bring your claim within this time, you will need to file an application for extension of time to bring the claim. The Employment Tribunal will then consider your application for extension of time to bring the unfair dismissal claim.

Elements of an Unfair Dismissal claim

The easiest way to understand what makes an unfair dismissal claim is to first understand what makes a fair dismissal. Below we have set out the requirements for a dismissal to be fair. If your employer has not met the following requirements when dismissing you, you may have an unfair dismissal claim.

When your employer terminates your employment, there may be several factors that are considered by your employer. The employment law states that if your dismissal was for one of the following reasons it can be classed as a fair dismissal:

Where your conduct at work has been unacceptable; examples would be frequent issues with lateness, punctuality, or unauthorised absences. Unacceptable conduct can also be isolated serious incidents such as assault, dishonesty, or a serious breach of regulations. An isolated serious incident may constitute to a fair dismissal.

  • Legal Restrictions

Where continuation of your employment would break the law, the dismissal may be classified as a fair dismissal. Examples would be a delivery driver who has lost his driving license, someone who has faced disqualification by their industry regulator, or if you no longer hold the right to work within the UK. In such circumstances, your employer may be able to dismiss you fairly.

If your employer has strong grounds to believe you are incapable of carrying out your role. This can include an employee’s health and not having the right qualifications. It may be that your employer has conducted investigations to determine your capability.

Redundancies are legal if they are carried out properly. A lawful redundancy is where your employer makes redundancies for a valid reason and follows the correct procedure for redundancy. There is specific guidance on what makes a redundancy fair.

  • Some other Substantial Reason

This is a catch-all provision that can be used if the above reasons do not apply but your employer may still be able to demonstrate the dismissal was fair. This is actioned on a case-by-case basis and if you issues an unfair dismissal claim to the Employment Tribunal, your employer would have to show that your dismissal was still fair despite not being able to fulfil one of the other four reasons.

If your dismissal was not for one of these reasons, you may have an unfair dismissal claim. Adam Bernard Solicitors can assist in determining whether your dismissal was unfair and if you have an unfair dismissal claim to pursue in the Employment Tribunal.

Reasonableness

Even if your employer has a fair reason for your dismissal; they must still demonstrate that they have acted reasonably in reaching the decision to dismiss you. If they have not, you may be able to bring an unfair dismissal claim. The actions of your employer are crucial to determine a fair and impartial dismissal procedure. In fact, when the Employment Tribunal assesses “reasonableness”, it will consider whether your employer has followed a fair procedure and if so, whether the decision for dismissal falls within a reasonable response from the employer.  Examples of employers being unreasonable include:

  • Sacking you for something that would normally result in a less serious punishment.
  • Not giving you any warning or chance to give your side of the story.
  • Not giving you a chance to appeal the dismissal.
  • Giving unreasonable deadlines.

If you suspect your employer has been unreasonable and you have been unfairly dismissed; you should check your employers’ own rules on how to dismiss people. If they have not followed their own rules and procedures when dismissing you, they could have acted unreasonably, and you may have an unfair dismissal claim.

Your employer should generally aim to follow the ACAS Code of Practice on Disciplinary and Grievance procedures. If you employer does not follow the code, it may be a factor that is considered by the Tribunal for unfair dismissal claims. You should file an appeal to the grievance which include your grounds for unfair dismissal. Adam Bernard Solicitors can assist you in drafting your grievance and appeal to unfair dismissal.

The importance of timing in Unfair Dismissal claims

If you believe you have been unfairly dismissed by your employer, it is vital that you act quickly. The law states that if you want to claim for unfair dismissal, you must lodge a claim with ACAS 3 months less 1 day from the date of your unfair dismissal.

For example, if you were dismissed on 2nd January 2021, you would need to submit your claim to ACAS by the 1st April 2021. If you do not act within this time, this may harm the chances of bringing a successful unfair dismissal claim. In law the Tribunal may be strict to Claimant’s who have delayed bringing the claim and there are no good reasons for the delay. If you are out of time to bring the claim, you may still be able to bring the claim but it is in your best interests to act quickly.

If you suspect you have been unfairly dismissed, you should seek legal advice at the earliest opportunity. This will allow our employment lawyers to spend more time on your case, be thorough in their legal research and evidence gathering. An organised claim is more likely to be a successful claim.

Summary of an Unfair Dismissal claim

Bringing a claim in court is like following a recipe, you need all the ingredients for it to work. In short, to bring an unfair dismissal claim, you must show:

  • You were an employee
  • You were a qualifying employee that worked for the employer for at least 2 years before they dismissed you.
  • Your dismissal didn’t fall under the 5 reasons for fair dismissal.
  • Your employer acted unreasonably when dismissing you.
  • You have lodged your claim for unfair dismissal within the 3 months less 1 day time frame with ACAS.

If you think you have a claim for unfair dismissal book a consultation with us today, call 02071000505. Our highly rated London-based employment lawyers can advise you on your rights and how to achieve the best outcome.

Where can you find us?

Adam Bernard Solicitor’s office is located near Upton Park Station, adjacent to the famous West Ham Stadium, with excellent access to the underground and bus routes. If you are driving then there is free parking available at the front and the rear of our office building.

Edited by Tayyeba Sheikh

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