At Lincs Law, we are often contacted by employees who have been dismissed after refusing to retire. Please read on for more information on your rights in this regard.
Client Scenario
We regularly act for clients who have been approached by their employer and asked about their intentions surrounding retirement and how long they intend to work for. Unfortunately, after they state their intention is to remain working, our clients find themselves subjected to a procedure (we have seen redundancy, performance and disciplinary) which ultimately leads to their dismissal. In these circumstances, we often advise, subject to a full assessment of the specific facts of their case, they may have claims of Unfair Dismissal and / or Age Discrimination.
Unfair Dismissal
If you have two years of continuous service, you have the right not to be unfairly dismissed. This means if your employer intends to dismiss you, they must be able to show:
- There was a fair reason to dismiss.
There are only five potentially fair reasons to dismiss an employee. These are: redundancy, misconduct, capability, illegality, and some other substantial reason.
- The decision to dismiss was reasonable in all the circumstances.
They must be able to show that their decision was reasonable when considering all facts. This includes whether a fair and proper procedure was followed, proper consideration of any mitigation, and consistency of treatment.
If your employer cannot meet the above criteria, then any dismissal may be unfair, and you may have a claim at the Employment Tribunal.
In the above scenario, where an employee has refused to retire, we often find an employer will commence a redundancy scenario to try and dismiss the employee on the grounds that their role is redundant. If you are subjected to a redundancy procedure, it is important to challenge the redundancy rationale and procedure. For more information on a true and reasonable redundancy procedure, please see our blog: https://lincslaw.co.uk/blog/are-you-at-risk-of-redundancy-3/
Unfortunately, a claim of Unfair Dismissal is, usually, only available to employees with two years continual service. If you have been employed for under two years, you would not be able to bring this claim, unless one of the limited exceptions applied. For more information on these exceptions, please see our blog: https://lincslaw.co.uk/blog/unfair-dismissal-less-than-two-years-service/
Age Discrimination
Age Discrimination is where an employee is treated less favourable, than other colleagues, because of their age.
If an employer dismisses an employee because they are a certain age and they have voiced their intention to carrying on work, that will likely lead to a claim of Age Discrimination.
Employment Tribunal Time Limits
There are strict time limits for employees to start the Employment Tribunal. You must lodge your claim(s) with ACAS Early Conciliation within three months (less one day) of the incident complained of. This may be the date of dismissal and / or the last act of discrimination.
These time limits are very important and must be adhered to. It can often be difficult to know when the last incident complained of occurred. Therefore, I recommend you seek specialised employment advice as soon as possible, if you have been dismissed or subjected to any discrimination, to ensure you do not miss any deadlines.
Lincs Law Employment Solicitors Can Help You
If you have any concerns relating to the matters discussed above, please contact us on 01522 440512 for an initial free, no obligation, phone enquiry. For more information on the services, we offer please visit our website at www.lincslaw.co.uk
Jasmine Stewart
Specialist Employment Solicitor
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