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If you are an employee and you started work for your employer before 6 April 2012 and have worked continuously for at least one year, you have the right not to be unfairly dismissed.
This means that your employer cannot dismiss you without relying on one of the potentially fair reasons set out in law.
The five potentially fair reasons are :
- Incapability or qualification (including incapability through ill health)
- Some Other Substantial Reason which justifies the dismissal of the employee holding the position which the employee held.
As well as having a fair reason, your employer must also act reasonably in dismissing you for one of these reasons and must follow a fair procedure before dismissing you. In deciding whether the employer has acted reasonably, a tribunal would take into account all of the circumstances of the case and the size and administrative resources of the employer. The tribunal is not allowed to substitute its own decision for that of the employer.
Employment tribunals must take the ACAS Code of Guidance on Disciplinary and Grievance Procedures into account when deciding most unfair dismissal cases. The tribunal may decide to increase compensation by up to 25% for any unreasonable failure by an employer to follow the ACAS Code, for example, if your employer dismisses you for misconduct without holding a disciplinary hearing. Similarly, if an employee fails to follow the ACAS code, compensation can be reduced by up to 25%, for example if you are offered an opportunity to appeal your dismissal and fail, without good reason, to do so.
What if I have worked for my employer for less than a year, or if I started work after 6 April 2012?
If you started working for your employer after 6 April 2012, you will have to work continuously for 2 years before you have the right not to be unfairly dismissed.
There are some very limited circumstances where you can still bring a claim with just less than one or two years' continuous service. There are also circumstances the employee has the right not to be unfairly dismissed from Day 1. These dismissals are treated as automatically unfair and a tribunal will not need to consider whether the employer acted reasonably or not. For example, it is automatically unfair to dismiss an employee because she is pregnant, or he/ she tried to exercise their right to take time off to care for a dependant.
If your employer has failed to give you a fair reason for dismissal, failed to follow a proper procedure, or if you think your employer is about to dismiss you unfairly, please please contact Judith Curran by email or telephone 01689 887872.
Remember, there are very strict time limits for making claims in the tribunal and these can be as short as 3 months, so you should seek legal advice as soon as possible.