Losing a job is probably one of the most stressful and upsetting things that can happen to someone nowadays, but if you think that you have been a victim of an unfair dismissal, the situation can feel much worse.
But what can and can’t you be dismissed for, and how do you know whether your employer has acted unlawfully?
It’s a really difficult and complex situation to find yourself in; so much so that many people will simply try and put it swiftly behind them, never imagining that they would be successful in holding their employer to account for the dismissal.
Of course we are unable to comment or give advice on individual cases, but we can provide a framework through which you should be able to take the first steps, if you truly believe that you have been unfairly dismissed.
What can you legally be dismissed for?
Although you may feel that you have been victim of an unfair dismissal, this might not actually be the case. Below is a rundown of some of the situations that would usually be accepted as grounds for dismissal.
- Being unable to do your job properly – This point is particularly vague and can encompass a huge range of issues that might take place in the workplace. Being deemed ‘unable to do your job properly’ could mean failing to update your skills where necessary,or not being able to get along with your colleagues. Within a situation such as this there are certain procedures that your employer must follow which include, informing you that your work isn’t up to the standards expected and giving you the opportunity to improve.
- Illness – Many people are surprised to learn that illness can be used as a justifiable reason for dismissal, but only in circumstances where this has made it impossible for you to do your job. In most situations a dismissal is only legal when all reasonable accommodation and attempts to support you in your work have been unsuccessful. Employers must also (within reason) provide you with adequate time to recover from illness before expecting you to return to work. Some long-term illnesses are considered to be ‘disabilities’ and in these cases your employer has a legal obligation to support you within the workplace and make reasonable accommodation for your needs as necessary. Check out our recent post getting back into work after a long-term illness
- Redundancy – Employers have the right to make redundancies within their business. However if the reason for which you have been selected for redundancy violates certain legal frameworks then you may find that you have been unfairly dismissed.
- Summary dismissal – Most often referred to as being ‘fired on the spot’ this is a situation which allows an employer to bypass the usually protocols for dismissing an employee and terminate their contract with immediate / near immediate effect. Reasons for which you can face a summary dismissal include serious situations such as violence against colleagues / property, or other actions which could be deemed as ‘gross misconduct’. In most cases though your employer should still investigate the situation before issuing a permanent dismissal.
- Statutory dismissal – This can occur when it would be illegal for you to continue the job that you are being employed to carry out. For example, if you are being employed as a taxi driver and you lose your license, you cannot carry out the normal day to day duties of your job within the confines of the law; therefore an employer would be perfectly justified in terminating your contract.
- It is impossible to continue providing you with employment – For example, if the premises in which you were working have been destroyed or rendered uninhabitable.
Finally, and most vaguely;
- A ‘substantial reason’- This covers many circumstances in which an employer is legally justified in terminating your contract of employment; this can include you being sent to prison, or refusing to accept changes to your contract.
The circumstances are rarely black and white when it comes to unfair dismissal, but some of the circumstances in which you may have been unfairly dismissed include if you have;
- Asked the employer for flexible working hours
- Refused to waive your working time rights
- Joined a trade union
- Taken part in legal industrial action (for a period of less than 12 weeks)
- Taken time off work in order to complete jury service
- Applied for / are completing maternity or paternity leave
- ‘Blown the whistle’ about wrongdoing in the workplace
- Been forced to retire by your employer
Your dismissal can also be ruled as unfair in situations where the employer has failed to follow the company’s formal disciplinary or dismissal process (or the statutory minimum dismissal procedure in Northern Ireland).
There is another type of unfair dismissal known as constructive dismissal which occurs when you are forced to leave your job against your will as a result of unfair actions by your employer. This could include cases where they;
- don’t pay you or demote you for no reason
- force you to accept unreasonable changes to how you work
- allow you to be bullied by other members of staff
What should you do?
If you think that you have been unfairly dismissed or forced to leave your job against your will as a result of your employers actions (or inactions) it is very important you seek legal advice as soon as possible. This third party (a lawyer, trade union representative or advisor from the Citizen’s Advice Bureau) should be able to act as a mediator between you and your former employer, in an attempt to settle the dispute as quickly and fairly as possible.
However if this proves too difficult then your case will most likely be heard in an employment tribunal (in Northern Ireland this is known as an industrial tribunal) which will seek to discover what happened, and whether your employer was legally justified in dismissing you.
Please be aware that all employment tribunals must take place within 3 months of your dismissal.