Your employer has the legal right to dismiss you. However, your employer also has an obligation to dismiss you fairly and without breaching your contract of employment. This post will look at both those obligations and draw a preliminary conclusion as to whether the person with the above question was dismissed fairly or not (and consequently whether they have an unfair dismissal – or any other – claim). It will therefore take a look at:
- What is unfair dismissal?
- How do I know if I have an unfair dismissal claim?
- What is wrongful dismissal?
- How do I know if I have a wrongful dismissal claim?
- How long do I have to submit my claims?
What is unfair dismissal?
Unfair dismissal is a statutory right that employees (with one or two years’ continuous employment, depending on when they were first employed) possess. Under s.94(1) of the Employment Rights Act employees have a right not to be unfairly dismissed from their employment. If they are dismissed it must be for a potentially fair reason, their dismissal must not have been procedurally unfair, and their dismissal must not have been substantively unfair. The potentially fair reasons for dismissal are (most commonly) redundancy, misconduct or incapacity (there are others). Examples of procedural unfairness include (among others) if the employer fails to hold any form of disciplinary hearing, if any hearing is biased in some way, or if the employee is dismissed for an offence where other employees have not been dismissed. In order to make a substantively fair decision to dismiss the person(s) making the decision to dismiss must have an honest belief that the allegations warranted a dismissal, a genuine belief that the allegations warranted the dismissal, and that these beliefs were based on a fair investigation.
How do I know if I have an unfair dismissal claim?
Many employees believe that their dismissal was unfair – it’s a natural reaction to think that your employer has been unjust in dismissing you unless what you did was particularly egregious. In order to demonstrate your dismissal was unfair you must normally rely on showing (on the balance of probabilities) that the dismissal was either procedurally unfair or substantively unfair. You will need to be able to provide documentary evidence or witness evidence to the Employment Tribunal that demonstrates that there was some irregularity in your dismissal.
What is wrongful dismissal?
Wrongful dismissal occurs when your employer terminates your employment in breach of your contract of employment. This normally happens when your employer terminates your contract without notice (or without the correct notice period) or if a fixed-term contract is ended without reason prior to the expiry date.
How do I know if I have a wrongful dismissal claim?
If your employer breaches your contract of employment when they dismiss you (e.g. by not giving the correct notice period) then they have dismissed you wrongfully unless you were yourself in breach of your contract of employment. If you were not in breach of your contract of employment then you may have a wrongful dismissal claim.
How long do I have to submit my claims?
You have three months less one day to submit a claim for unfair dismissal or wrongful dismissal to the Employment Tribunal.