Under the Employment Rights Act 1996 an employer should have a good reason to dismiss an employee. The dismissal of an employee without good reason or without following a fair procedure can lead to a claim against an employer for unfair dismissal

Eligibility – Can I bring a claim for Unfair Dismissal?

The qualifying period for an unfair dismissal claim is two years’ continuous employment, although there are exceptions to the two-year rule. One of such exception is where the dismissal is automatically unfair.

A dismissal will be deemed automatically unfair if the employee can show that their dismissal was as a result of them making a protected disclosure (whistle-blowing). A dismissal will also be automatically unfair if it comes as a result of an employee seeking to assert a relevant statutory right.

To defend a claim for unfair dismissal, the employer has to establish that the reason for the dismissal was fair and that the dismissal was within a range of reasonable responses open to the reasonable employer.

The law considers the following to be fair reasons for dismissal

  • Qualification;
  • Misconduct;
  • Redundancy
  • Where the continuation of employment would be in contravention of the law

Unless an employer can prove it has a fair reason for dismissal, the dismissal will be unfair. Even if there is a justified reason for dismissal, the dismissal will still be unfair if the employer has not followed a correct process. For example, failing to follow the ACAS Code of Practice.

If a dismissal is held to be unfair by a Tribunal Judge, an employer can be ordered to re-engage, reinstate or to pay compensation to the dismissed employee.

Constructive Dismissal

Constructive unfair dismissal occurs where an employer has fundamentally breached the contract of employment thereby causing the employee to resign in response. When there has been a breach of contract and an employee seeks to resign, it is important that they do so promptly.

Where there is an unreasonable delay in resigning, an employer may successfully argue that such a breach has been accepted or forgiven by virtue of the employee’s conduct. 

Wrongful Dismissal

A wrongful dismissal claim is a claim by an employee against an employer for breach of contract. For example, where an employee has been dismissed without notice or with insufficient notice. 

A dismissal will not be wrongful where an employment contract permits the employer to terminate without notice by making a payment in lieu of notice and the employer makes a payment in lieu of notice.

If you believe that you have been dismissed unfairly and wish to obtain some legal advice on how to proceed, call our expert employment law solicitors today. We offer a free 30 minute consultation.




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