What constitutes an unfair dismissal?
Have I been unfairly dismissed? Can I make a claim?
If you have recently left a job due to being sacked and you feel that you were done so unfairly, then you may be entitled to claim for unfair dismissal against your employer. The general areas that need to be considered are whether or not the employer had a good reason for firing you, whether or not the procedure taken by the employer was the correct and fair way of doing so (they didn’t just kick you out the door without explanation) and whether you were dismissed for an automatically unfair reason. I will discuss what requirements there are to make a claim, before looking in detail at what automatically unfair dismissal circumstances there are for employees to make a claim.
Requirements needed to be eligible to make a dismissal claim
There are certain provisions that must be covered for an employee to be entitled to make a claim against an employer. The employee must have at least 1 year's continuous employment with their employer, they must be below the national retirement age and they must usually work in the UK.
The claim must be made within 3 months of the date of the dismissal for the employment tribunal to hear it. Any claims made after this time will, unless in exceptional circumstances, not be heard by the tribunal. The 3 month limit starts the same day that your notice period ends, if you are given notice.
Examples of automatic unfair dismissal:
The following is a list of all areas that an employee is entitled to make a claim upon for automatic unfair dismissal in front of an employment tribunal.
Unfair dismissal before, during or after a business transfer or takeover. Protection here falls under the transfer of undertakings protection of employment.
Unfair selection for redundancy: Redundancy generally is a fair form of dismissal but in some circumstances an individual may feel that their redundancy has been unfairly selected.
Unfair dismissal on the grounds of maternity: An individual cannot be fired because of any matter related to their pregnancy. There are incidents where women are fired when they become pregnant or take extended holiday for maternity leave. This is a ground for unfair dismissal.
Unfair dismissal in connection with disciplinary hearings: Any individual has the right to be accompanied by a trade union representative or colleague to a disciplinary meeting, they also have the right to delay the hearing if their selected companion cannot make it. Any dismissal on the exercising of these rights is an unfair dismissal.
Unfair dismissal relating to working time: If any employer tries to force an employee to work longer hours than expected, to give up working hours or change any of the provision regarding working hours and the employee refuses to do so resulting in dismissal, this is unfair dismissal and can be claimed upon.
Unfair dismissal due to trade union reasons: Any decisions made with regards the membership, recognitions and subscription to a trade union whether the decision is to join or not to join cannot be a valid reason for dismissal. Any dismissal relating to such decisions will be regard as automatic unfair dismissal.
Industrial action: It is automatically unfair for an employee to be dismissed because of their involvement in an industrial action dispute. As long as it doesn’t last longer than 12 weeks.
Minimum wage: Any claims made against being paid less than the minimum wage cannot result in a fair dismissal. Employees are well within their rights to obtain minimum wage and claim so if they are not.
Health and Safety: Any precautions taken to try and protect you and other employees around you regarding health and safety cannot be a reason to fire you. Refusing to come to work, advising your employer on dangerous situations, trying to take steps to protect against potential health and safety is something an employee should not have to do. If an employee is dismissed due to such actions then this is automatic unfair dismissal and can be claimed for.
There are other forms of unfair dismissal claims known as potential dismissal claims; however these are dependent on a string of external factors and degrees of dismissal. The list above shows areas where the employee has the automatic right to claim for unfair dismissal. If as an employee you believe you have been unfairly dismissed in one of the areas above then you should make a claim through the advice and assistance of a solicitor.
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