Are you eligible to make a claim of Unfair Dismissal?
If you are an employee with at least two years’ continuous employment, you have unfair dismissal rights.
There are certain exceptions to this two year rule and we can advise you if any of those apply to your situation.
What is an unfair dismissal?
If your employer dismisses you, your employer will need to prove that it has both a fair reason to dismiss you and has acted reasonably in treating that reason as a sufficient reason to dismiss you.
Reasons for dismissal
There are five potentially fair reasons to dismiss:
- your misconduct (including gross misconduct)
- your capability (performance or ill health) or qualifications
- there is a genuine redundancy situation
- you could not continue to be employed in your position without the law being broken (illegality)
- some other substantial reason of a kind to justify dismissing you in your position (SOSR).
Acting reasonably includes following a fair procedure and treating the reason as a sufficient reason to dismiss you. If you are being disciplined for misconduct or performance issues, your employer’s own disciplinary procedure (or performance management procedure) and the ACAS Code of Practice on Disciplinary and Grievance Procedures, will be relevant.
If you are disciplined for misconduct or performance, it is unlikely to be reasonable for your employer to dismiss you without having previously given you formal warnings about the relevant issues.
If you are disciplined for gross misconduct, your employer is not required to have provided you with any prior warning, nor give you notice of termination. Gross misconduct covers serious matters such as fighting and stealing but there can be various shades of grey between misconduct and gross misconduct.
You should be aware that just because your employer labels allegations as gross misconduct, an Employment Tribunal may disagree and may find that dismissing you in these circumstances, is unfair.
Acting reasonably in relation to ill-health, redundancy, illegality and SOSR will involve different procedures and considerations.
If you are facing a disciplinary hearing and your employer has used the term gross misconduct or you have previously been given a final written warning which is current, you may wish to carefully consider whether you proceed with the disciplinary hearing.
If you proceed, you may be “cleared” of the allegations but in our experience, there is often a high risk that a disciplinary penalty (warning or dismissal) is given, once a disciplinary procedure has started.
If your employer dismisses you, particularly for gross misconduct, this can make matters difficult for you to secure new employment. Even if you are successful in an unfair dismissal claim, this does not remove the fact that you were dismissed (albeit unfairly).
Sometimes, tactically, it can be worth an approach to your employer before the disciplinary hearing to see whether you can part ways under the terms of a Settlement Agreement, without any dismissal taking place.
In return for settling your potential employment claims against your employer, in the Settlement Agreement, you may receive an agreed reference, a financial settlement and an agreement that neither side will make derogatory comments about the other.
We are experienced in making these approaches to your employer, negotiating a financial package for you and advising upon the terms of a Settlement Agreement.
Our solicitors work across the whole of the Coventry and Warwickshire region including Rugby, Nuneaton, Bedworth, Leamington Spa, Kenilworth, Warwick, Atherstone and Balsall Common as well as further afield.
The above is not intended to provide advice.