Any employee, who has sufficient qualifying service, has the right not to be unfairly dismissed. Normally – but not always – in order to claim unfair dismissal an employee needs two years’ continuous service with an employer in order to be able to bring an unfair dismissal claim. A dismissal will not be unfair if an employer can show that the reason, or main reason, for the dismissal was a potentially fair reason.
In addition, a dismissal will be unfair if an Employment Tribunal finds that, taking into account the size and resources of an employer, a dismissal was procedurally and substantively unfair.
ACAS has provided a Code (see link below) as to what an employer should do when dismissing an employee for misconduct or poor performance.
Unfair dismissal can only apply to employees, not the self-employed or to workers.
A dismissal can come about by termination by employer, constructive dismissal or expiry of a limited term contract.
There are five potentially fair reasons for dismissal under section 98 of Employment Rights Act 1996: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction and some other substantial reason” (SOSR) (see link).
Employees who believe that they have been unfairly dismissed must commence ACAS Early Conciliation generally within three months less one day from the Effective Date of Termination. If in doubt, start ACAS Early Conciliation as soon as possible!
If an Employment Tribunal finds that an employee was unfairly dismissed, then the Tribunal may order re-instatement, re-engagement, or award compensation. A Tribunal will expect a Claimant to have mitigated their losses i.e. looked for, and applied for, alternative work. It is always preferable to apply for work in writing, as it is much easier to prove that you were looking for work.
At Truth Legal we may be able to offer a No Win, No Fee agreement in order to bring your unfair dismissal claim. We will need to see all the key documents and we will also need to have a meeting – either in person or over the telephone – to assess your case.
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