Totaljobs.com > Career Advice > Your rights > Unfair dismissal
Unfair dismissal
Losing a job can be a time when emotions run high and judgment is clouded. Here is some guidance over unfair dismissal.
What constitutes a dismissal?
An employee is dismissed when the employer terminates his or her contract. This differentiates it from a resignation, which is considered to be termination by the employee. Confusingly, the expiry of a fixed-term contract is also often referred to as a dismissal.
What constitutes an unfair dismissal?
One where either you weren't fired for a fair reason and/or you weren't fired using the correct procedures. It's easier to say what the tribunals consider fair than what is likely to be found unfair.
- Incapability - in terms of qualifications, competence or health (excluding disability).
- Serious or repeated misconduct - theft, intoxication, leaking confidential information, regular absence, etc.
- Redundancy - provided the method for selection was fair.
If you are dismissed for exercising your legal rights, it will automatically be classed as unfair dismissal.
Can an employee ask for the reasons for dismissal?
The Employment Rights Act 1996 provides that employees who have been dismissed may ask their employer for a written statement of the reasons for their dismissal, which their employer must provide within 14 days. Employees who are dissatisfied because they have not received a statement, or who believe the statement to be inaccurate, may refer the matter to an employment tribunal. Employees must have one year's continuous service with their employer to qualify for this right.
Is retirement a valid reason for dismissal?
The Employment Equality (Age) Regulations (2006) state that forcing someone to retire below the age of 65 is unfair. But retirement at 65 and older may be fair, provided the right procedures are followed. See the Department of Trade and Industry website for details .
What is constructive dismissal?
A constructive dismissal is where an employee resigns because of some action by the employer which has caused the employee to believe that continuation of employment is impossible.
For example, this action could be a detrimental change in the contract of employment or a refusal to improve intolerable working conditions.
When can a disciplinary procedure be incorrect?
A tribunal will look at whether the employer had a proper disciplinary procedure, and whether it was followed. Written warnings aren't obligatory in every situation; for example, in cases of serious misconduct, immediate dismissal can be perfectly fair. If the allegations are not investigated thoroughly, or if you're not given the chance to tell your side of the story, your claim is more likely to be successful.
Can anyone bring a claim of unfair dismissal?
No. To begin legal proceedings, you must:
- have a proper contract of employment. If you are a casual or temporary worker, you may not have any protection (see more information on Employment Contracts);
- have been employed by your organisation for one year without any breaks;
- be under 65; and
- work in the UK.
Can I claim at any time?
No, you have three months from the date on which you were notified of the dismissal.
Can my union help if I am unfairly dismissed?
Your union representative is there to provide help and support. It may bring in an officer at national level to help you in a case of unfair dismissal. Trade unions can provide expert information, advising you, for example, on the likelihood of success should you wish to take your case to an employment tribunal.
Useful Links
Totaljobs.com > Career Advice > Your rights > Unfair dismissal
Search for a job with totaljobs.com.
