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Unfair Dismissal

If you have been dismissed from your job in unfair circumstances, you may have a claim for unfair dismissal. Ordinarily you will need to have been employed for two complete years before you can bring such a claim but there are some important exceptions e.g. where the dismissal results from unlawful discrimination or ‘whistle-blowing’.

 

In order to justify dismissing an employee with the necessary service an employer will need to demonstrate a fair reason for the dismissal.  Fair reasons are usually:

 

•  Redundancy (your job role no longer exists or has diminished);

•  Misconduct (you’ve done something wrong and reprehensible); or

•  Incapability (you can’t do your job properly).

 

However, simply being able to show that one of these reasons exists is not enough to get an employer home.  In addition it has to show that it was reasonable in all the circumstances to treat such a reason as sufficient reason for a dismissal.  That is always dependent on the particular set of facts. 

 

We will consider your employer’s reasons for dismissing you and check whether the procedure that has been followed is fair.  We will then advise you of your legal rights, how to challenge the dismissal if appropriate, and what compensation may be available to you, whether through an Employment Tribunal, the county courts or by means of an out-of-court settlement.  If possible, we will help you negotiate a settlement agreement that allows you to transition to a new role and ensure that any payment received is as tax effective as possible.

 

We fully understand that every dismissal is different.  It can be an amicable process but more often it is acrimonious, with feelings running high on both sides.

 

Our employment solicitors have been involved in hundreds of dismissal cases, at all levels of the employment market.  We are tenacious but fair and realistic in advancing our clients’ interests.

 

Wrongful dismissal

 

Whereas ‘unfair dismissal’ results from a breach of employment legislation, ‘wrongful dismissal’ results from a breach of your contract of employment.  If you are dismissed in circumstances where you can fairly be dismissed, but your employer has not complied with its contractual obligations to you, for example in not paying you for your full notice period, you may have a claim for wrongful dismissal.

 

What is ‘constructive dismissal’?

 

You may also have a claim in circumstances where the treatment you have received from your employer makes it impossible for you to continue in employment, leaving you with no option but to resign.  Although not an express dismissal, such a situation gives rise to a fundamental breach of contract by your employer which may amount to constructive dismissal.  It just means that although the situation looks like a resignation, it is actually the same as a dismissal.  Constructive dismissal can be unfair or wrongful or both. 

 

Constructive dismissal claims can be risky, so it's important to get expert legal advice and consider the circumstances before leaving your job.  You should ordinarily expect to go through an internal grievance procedure before making a decision, otherwise the decision to resign may appear premature and rash.

 

On the other hand, if you remain in your job after you believe your employer has committed a fundamental breach of contract, it may be assumed that you have waived your right to complain about it.  Timing is very important.

 

 

For more information please contact:
Bells Solicitors Limited.   Registered in England and Wales no. 07827988.   Authorised and regulated by the Solicitors Regulation Authority.   SRA number 569030.   VAT registration number 137595285