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Unfair Dismissal

By: Jeff Durham - Updated: 11 Sep 2016 | comments*Discuss
 
Qualification For Unfair Dismissal

All employers have the right to hire and fire a member of staff - within reason. However, if you feel you have got the sack unfairly, you may have a case for the Employment Tribunal.

Qualification for Unfair Dismissal

Whether or not you feel you have been unfairly dismissed from your employment, there are certain criteria you need to meet, before an employment tribunal could even begin to consider a case for unfair dismissal.

It's necessary to meet the following conditions to be considered as a case for unfair dismissal.

  • You must have had worked with your employer for at least 2 years if you started work with them on or after 6th April 2012. (Anyone employed prior to that date, the period is one year). There are exceptions to this such as maternity issues, dismissal as a result of trade union activity and others
  • You must be below 65 or your normal retirement age for your job on the date of your dismissal, although there are exceptions to this if your dismissal was based on the grounds of discrimination
  • Your job ended within the past 3 months. This is because an employee only has 3 months since they were dismissed in which to bring the claim

How a Claim for Unfair Dismissal Works

If your case for unfair dismissal is considered by an employment tribunal, your employer must show they have:
  • A valid reason for dismissing you
  • Acted reasonably in the circumstances

They need to have investigated the situation leading up to your dismissal thoroughly and followed at least the steps in the statutory minimum dismissal procedure. If they haven't taken these steps, then your dismissal is unfair.

If your employer has investigated fairly but have come to the wrong conclusion, if they have got their facts wrong, for example, this will not necessarily mean the dismissal is unfair. Your employer must be able to demonstrate that they have been consistent and have not sacked you for doing something they would let other employees ordinarily do.

You may be able to claim unfair dismissal if you are told that you weren't told about a relevant company rule or policy by your employer. However, ignorance would not be an excuse. For example, if you breached a company rule or policy because you didn't bother to read all 100 pages of their employment handbook, you can't use this as a mitigating factor in your defence - they did provide you with the information, after all.

Fair Versus Unfair

A dismissal is usually 'fair' if it's because of:
  • Your conduct
  • Your ability to do your job is not up to standard
  • Redundancy
  • A legal reason that now prevents you from doing your job (e.g. you've lost your driving license and you're employed as a delivery driver)

A dismissal is automatically unfair if it's because:

  • You've used or attempted to use a statutory employment right (for example, taking parental leave).
  • You've become pregnant
  • You're a member or fail to become a member of a Trade Union

Does my Employer Have to Give me Notice?

Your employer must normally give you the same notice as set out in your terms of employment. However, you can be dismissed without notice if your employer deems you to be guilty of gross misconduct. For example, you can be fired 'on the spot' for things such as theft, fraud or violence. An employer should, however, always investigate the case fully before instigating dismissal, even in areas of gross misconduct.

What to do if You Think You Have Been Unfairly Dismissed

First, try appealing under your employer's dismissal or disciplinary procedures or you and your employer could try conciliation through ACAS, (Advisory, Conciliation and Arbitration Service) where a specialist may be able to help you sort out the problem.

And Failing That…..?

If you've failed to come to some sort of agreement with your employer, you may need to go to an Employment Tribunal. Before doing so, you should:
  • Have firstly appealed under your company's dismissal and grievance procedure
  • Have made the claim within 3 months of your dismissal unless internal procedures are still ongoing.

If a tribunal finds in your favour, you could get your job back or, alternatively, financial compensation. You do not have to return to your job but you may find that compensation is lower if you don't. The compensation is not for any hurt feelings or for you thinking you have been badly treated by your employer, it reflects the amount of money you have lost since you were dismissed from your job and is made to bring you back to the level of your financial status, had you not otherwise been dismissed unfairly. You will also have been expected to minimise any financial loss by signing on for income support or some other benefit or by looking for alternative employment.

A tribunal may also reduce your compensation if it deems that your own conduct played a part in your dismissal or if you haven't complied with the statutory minimum disciplinary procedures.

Further information about unfair dismissal claims and employment tribunals can be obtained from your local Citizen's Advice Bureau and ACAS.

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deb - Your Question:
I left my previous job which I loved as late nights and travelling was getting too much I started a new job in a jewellers it was temporary till next may I noticed things were not tight with my manager another new starter had snide comments made too her about her job performance she was getting anxiety ftom this and too speak too the other manager regarding this the manager came down and asked me questions in which I did not want too get involved but I thought I should mention how the new starter and myself was get ing treated and training not being done they investigated it and the other manager said our names would not be mentioned the manager went off sick family problems we had no staff I was handed the keys and ran store on some days I had only worked there 3 months the new starter left as she couldn't work with the manager I went on holiday then came back the atmosphere was awful she kept making me feel stupid this went on then last week she called me in office for probation review and said things were not working out and I kept putting the charms the wring way round on display a poor excuse I really think I was let go for whistle blowing what shoukd I do.

Our Response:
There are very specific criteria regarding unfair dismissal due to whistleblowing. It's unlikely that your case would fit those criteria but check out this summary
SafeWorkers - 13-Sep-16 @ 11:52 AM
I left my previous job which I loved as late nights and travelling was getting too much I started a new job in a jewellers it was temporary till next may I noticed things were not tight with my manager another new starter had snide comments made too her about her job performance she was getting anxiety ftom this and too speak too the other manager regarding this the manager came down and asked me questions in which I did not want too get involved but I thought I should mention how the new starter and myself was get ing treated and training not being done they investigated it and the other manager said our names would not be mentioned the manager went off sick family problems we had no staff I was handed the keys and ran store on some days I had only worked there 3 months the new starter left as she couldn't work with the manager I went on holiday then came back the atmosphere was awful she kept making me feel stupid this went on then last week she called me in office for probation review and said things were not working out and I kept putting the charms the wring way round on display a poor excuse I really think I was let go for whistle blowing what shoukd I do .
deb - 11-Sep-16 @ 1:09 PM
I've started my job, am on my 5th month of probation and I am being bullied by my team leader. Everyone in the office has noted that he has micromanaged me time and time again and pulls me into hour to 2 hour long meetings where essentially threatens that he has the power to terminate or keep me on. Constantly has threatened me since month one to put me on a PIP despite other workers having done far worse and receiving the contract. He has however assisted with some aspects of my dyslexia (however has constantly said that I've got memory loss after reading a segment in my report about memory recall difficulties) however has not been understanding regarding other aspects of my health going downhill.
Help - 31-May-16 @ 11:30 PM
(CONTINUES FROM COMMENT BELOW).....After O wrote to tell A the matter would be closed unless he heard from her, A sent the same letter by email. This letter defended F and outlined M’s unprofessional behaviour and the circumstances of the assault. In the meantime, F reported much of the above to O in writing. F was invited to, and attended a meeting at head office with senior management, where she got the impression that they were not interested in the allegations of assault or discrimination, but were manipulating the situation to focus on her performance. A later attended a similar meeting and was threatened with legal action for “slander” if she took her complaint further. F was then informed of a deferred performance appraisal (of which she had never been informed) for her, scheduled for two days after F was told that she would receive the results of the company’s investigation. This is next week. In the meantime, this week staff have received cash bonuses in envelopes and notifications of an hourly pay rise from next week. Historically part-time staff receive an average of 50% less bonus than full-time managers. F received the same bonus as her staff, and unlike other managers, she has not received notification of a pay rise. F is certain that she will soon be dismissed for alleged poor performance, in spite of clear evidence to the contrary. She has been employed for just under 6 months.
Bobbie G - 12-Dec-15 @ 4:31 PM
This is a long one: F has an 11-year old eye condition which requires her to wear dark glasses. The company's area manager (M) told her at interview that she thought this would be a problem when dealing with customers. F told M that this had not been a problem before (she had plenty of previous face to face customer experience) but agreed that she would try some less dark glasses. She was employed, but the lighting was too bright for her and she had to revert to her original glasses (NB: under the lights, although F's glasses are dark, her eyes are still visible). M continued to mention F's eye condition almost every time she came into her branch. At interview M told F that sales were "down on last year", for various reasons, including a new branch of the store in a nearby town. As time went on F found it difficult dealing with M who proved to have been principal in forcing another area manager, the two previous branch managers and a number of assistants out of the company because of her bullying and critical management style. "my job is to tell you what's wrong and what's not wrong" is a direct quote which illustrates her approach. In spite of this F enjoyed her job and regularly beat weekly targets set by M by up to almost 50%. Two other local branches have been unable to reach their targets on a regular basis. Recently, on a particularly bad day, M came into the branch and complained and shouted at everybody (she does this in other branches), even in earshot of customers. She got particularly frustrated with one of F's assistants (A) and assaulted her with a strong slap on the arm. M then wanted “a word” with F and took her into a store room where she subjected her to a 50-minute criticism of F, all her staff, and the company senior management. Because of what had gone on that day and that there were no witnesses, F had the good sense to reach into her handbag and turn on her mobile voice recorder. Amongst the things M said were: 1) F wearing lighter glasses was a condition of her employment and that she cannot have someone in a face to face customer position where they can’t see their eyes (factually incorrect, as stated above); 2) another, foreign, member of staff should not be given more hours because J can’t understand her (she has worked there successfully for several years and only since M joined has she had her hours reduced), and even said that when this lady answers the phone “it sounds like a porn shop”; 3) she was extending F’s probation period by one month because of her performance. F asked M if this was a verbal warning. M said “no”, but she would confirm some points in an email, which M later sent to F and copied into senior management. A resigned following the assault on her and after the company owner (O) came to the branch and asked A if she wanted to make a formal complaint. A submitted a grievance in writing, which was ‘lost’ in the company’s internal post. After O wrote to tell A the matter would be closed un
Bobbie G - 12-Dec-15 @ 4:27 PM
So I was employed for three wer eks at a retail store, and was sacked due to me enquiring whether or not I could transfer to another store, I was based in a location a bit of a distance from my home, I went to the same store which was based closer, and enquired about it, they then contacted my store to say I had been in, and then I went to work today to discover I had been sacked is this a case of unfair dismissal?
Emma - 5-Sep-15 @ 7:49 PM
lenam - Your Question:
I came to UK as a live in nanny and worked for a week and on my first day off a host family just threw me out of the house without any notice. They didn't make an insurance and a contract as told that it will take up to a month before all the papers will be ready. And they didn't pay me a week wages. What is possible to do in that case? Thanks.

Our Response:
They should have paid you for the week you worked and given you any agreed notice before dismissing you. Talk to your nanny agency if you got your job through one. If necessary you might have to try and get your money back via the small claims court.
SafeWorkers - 27-Aug-15 @ 2:46 PM
I came to UK as a live in nanny and worked for a week and on my first day off a host family just threw me out of the house without any notice . They didn't make an insurance and a contract as told that it will take up to a month before all the papers will be ready. And they didn't pay me a week wages. What is possible to do in that case? Thanks.
lenam - 26-Aug-15 @ 8:12 PM
@angiecc. Dismissal without a notice period can usually only be used in the case of gross misconduct, which is this case is not relevant. Your options here are to either (1) dismiss the employee and offer payment in lieu of notice (this should really be given as an option in the contract unless you have the agreement of the employee), (2) allow a period of 'gardening leave' so the employee does not come in to work while serving his notice (but is still paid) or (3) To simply let him work out his notice.
SafeWorkers - 21-Apr-15 @ 1:50 PM
the new manager is 2 months into a 6 month probationary period, but has made a lot of serious mistakes & has shown a severe inability to do the job he was employed for. the contract had been written hurriedly & mentions that both parties will give 3 months notice. can I still dismiss him without notice due to these serious mistakes & his inability to do the job that he was employed for?
angiecc - 18-Apr-15 @ 5:16 PM
@Sy. No you would not be able to claim unfair dismissal for this. You cannot claim for unfair dismissal until you have worked for an employer for two years. There is more information about Probationary periods here.
SafeWorkers - 13-Apr-15 @ 10:33 AM
Hi im just wondering if I can claim unfair dismissal ive been with my employer since December 2014. my employer laid me of for three weeks in January then took me back on with different job role and restarted my probation period during my probation period they have sacked me because I have been of work with a back problem wich they have sick notes for is there anything I can claim I.e unfair dismissal thankyou
sy - 9-Apr-15 @ 3:28 PM
@Anne-Marie Robinson. As a permanent employee for almost two years, you have gained the right to claim unfair dismissal if that is what happens. Talk to your employer NOW about your objectives etc. That way you still have a month to meet them.
SafeWorkers - 25-Nov-14 @ 2:32 PM
Hi I have been with my current employer for a year and 11 months. I have recently taken a promotion to a new role within the same company. Apparently I am in a 3 months probationary period which I have note signed a new contract for. My old role as a account manager crossed over into my new role Development Manager for 2 months. No targets were set out to achieve in my first three months. I have had my probationary period extended by a month before my 3 months probation has ended. Can you tell me; can I be let go within this period? If so could it be instant dismissal? What rights do I have if they do especially as I have no clear guidelines on what I should have achieved and no signed new contract for this job or no confirmation of probationary period. Thanks in advance
Anne-Marie Robinson - 24-Nov-14 @ 6:34 PM
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