Unfair dismissal from my employment
Do you believe that your dismissal at work was unfair? The law might be on your side and we can help you.
First of all, it is important to note that only employees can bring unfair dismissal claims, such employees must also show continuous employment of at least two years if the employment started on or after 6 April 2012.
What is unfair dismissal?
A dismissal will be held to be fair if both of those conditions are met:
- The employer shows that the reason for the dismissal was one of the five potentially fair reasons for dismissal under section 98 of the Employment Rights Act 1996, which are:
- Capability or qualifications
- Conduct of the employee
- Statutory restriction, for example failure to obtain vocational qualifications
- Some other substantial reason, for example business reorganisation
- The tribunal finds that, in all the circumstances (including the employer’s size and administrative resources) the employer acted reasonably in treating that reason as a sufficient reason for dismissal.
Moreover, some dismissals are deemed automatically unfair. These include for instance dismissals for reasons connected to pregnancy or childbirth, health and safety activities, whistleblowing exercising various time off rights, or asserting a statutory right under the Employment Rights Act 1996.
As an employee, you will have to show that you have been dismissed however it is for the employer to prove the reason for the disissal. As legal advisors, we are here to help you to build a proper case.
A constructive dismissal occurs where the employer does not dismiss the employee, but the employee resigns and can show that they were entitled to do so by virtue of the employer’s conduct. Employees are protected by section 95(1)(c) of the Employment Rights Act 1996.
The following elements are needed to establish constructive dismissal:
- Repudiatory breach on the part of the employer. This may be an actual breach or anticipatory breach, but must be sufficiently serious to justify the employee resigning.
- An election by the employee to accept the breach and treat the contract as at an end. The employee must resign in response to the breach.
- The employee must not delay too long in accepting the breach, as it is always open to an innocent party to “waive” the breach and treat the contract as continuing.
If an employee proves that they have been constructively dismissed, this will give rise to a claim for damages for wrongful dismissal.
If you feel you may have been unfairly dismissed, contact us for advice immediately.