When Can You Claim Unfair Dismissal?

Author:
Deana Bates
Employment Law Solicitor
Date:
24/07/2020

If you need to make a claim for unfair dismissal, you must do this within 3 months (minus one day) of the dismissal taking place. So, if your job ended on 1st April for example, you would need to make a claim by 30th June. You must contact ACAS (Advisory, Conciliation and Arbitration Service) before the limitation date to complete the early conciliation process.

Because of this strict time limit on making an unfair dismissal claim, it’s best to make your claim as soon as possible from the end of your employment. To make a claim, you’ll need to get in touch with ACAS (Advisory, Conciliation and Arbitration Service) to complete early conciliation and request an Early Conciliation certificate. This will act as proof that you have attempted to resolve the matter before pursuing a claim at the Employment Tribunal, and is something you must do. 

To discuss if you can claim for unfair dismissal, get in touch with our Employment Solicitors for legal advice.

Call us on 08002605010 or request a callback and we will help you.

Unfair Dismissal Law in England and Wales

Under section 94 of the Employment Rights Act 1996, you’re protected as an employee from being unfairly dismissed.

It could be unfair dismissal if your employer doesn’t have a good reason to dismiss you, or if they fail to follow the company’s formal disciplinary or dismissal process.

Unfair Dismissal Explained

Your employer can only terminate a contract of employment for certain reasons. The reason for ending your employment needs to be fair. By law, there are five potentially fair reasons to dismiss an employee. They are:

  • Redundancy
  • Your capability or lack of relevant qualifications to perform the role, for example due to ill-health or poor performance
  • Your conduct, for example, stealing from a colleague or from your place of work
  • A law or restriction that means you can’t continue in your job
  • Another substantial reason such as concerns about the safeguarding of children or vulnerable adults

Under Section 98 of the Employment Rights Act 1998, your employer has to show that there was a fair and justifiable reason to dismiss you.

For example, it’s likely to be fair for an employer to dismiss a temporary employee who was brought in to provide maternity cover for a fixed period of time, once the maternity cover period has ended.

Retirement was once seen as a fair reason for dismissal, but in 2011, this was abolished. Because of this, age can no longer be a reason for dismissal.

Examples of Unfair Dismissal

There are a number of situations which would be considered unfair dismissal. For example, if your dismissal is because:

  • You ask for flexible working
  • You refuse to give up your right to a break
  • You resign and see out your correct notice period
  • You joined a Trade Union
  • You taking part in official industrial action
  • You take time off for jury service
  • You apply for maternity, paternity or adoption leave
  • You expose a wrongdoing in the workplace
  • You were forced to retire

If you’re unsure if your dismissal was unfair, contact one of our Employment Solicitors who will discuss your personal circumstances with you.

Can Anyone Claim for Unfair Dismissal?

You can only claim for unfair dismissal if you’ve worked for a qualifying period of 2 years continuous service, unless you are claiming for automatic unfair dismissal.

Not everyone can make an unfair dismissal claim against an employer, as your employment status has to be that of an employee. Examples of people who can’t complain to an Employment Tribunal about unfair dismissal include:

  • People who are self-employed
  • Independent contractors
  • Armed forces personnel
  • Employees who have already reached an agreement with their employer (either a COT3 through ACAS or a settlement agreement)
  • People employed under an illegal contract
  • Police officers (except in cases related to whistleblowing or health and safety)
  • People covered by a ‘dismissal procedure agreement’ that exempts them from unfair dismissal
  • Employees working on a fishing vessel who are paid in a share of profits earned by the vessel

How Do I Make an Unfair Dismissal Claim?

If your dismissal is unfair, then you can take legal action against your former employer by making an unfair dismissal claim.

There are three ways to do this:

  • Do it yourself
  • Through a Trade Union
  • Through an Employment Solicitor

If you feel a little confused over whether you meet the requirements to make a claim, then you should speak with one of our Employment Solicitors who can tell you where you stand.

You can make a claim by yourself, but its best to get legal assistance from an Employment Solicitor. We can represent you and help you put together a strong case.

How Simpson Millar Can Help You

We know Employment Tribunals can be daunting, but if you have suffered from unfair dismissal, you have legal options available to you and you’re in safe hands with us.

Employment Tribunals can feel overwhelming but things don’t always have to go down this route. We’ll work with you and your employer to find the best possible outcome. Our approach is always going to be in line with what you want, whether that’s tough action or not.

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