I am often contacted by employees who consider they have been unfairly dismissed and they want to know if they can bring a claim of Unfair Dismissal against their employer. Whilst this is a very common claim for employees to bring, there are certain requirements that must be met before an employee can bring a claim of Unfair Dismissal. Please read on for more information.
Do You Have the Correct Years of Service?
The right to bring a claim for Ordinary Unfair Dismissal claim is available to employees who have at least two years continuous service.
The general position is that if you have under two years’ service, you are not eligible to bring a claim of Ordinary Unfair Dismissal. There are some limited exceptions which would allow an employee with under two years’ service to bring a claim of Automatic Unfair Dismissal, but these only apply in specific and limited circumstances. For more information on these exceptions, please see our blog: https://lincslaw.co.uk/blog/unfair-dismissal-less-than-two-years-service/)
What is an Unfair Dismissal Claim?
If you are eligible to bring a claim of Unfair Dismissal, the next step is to look at whether your dismissal was fair. There are two questions to ask on whether the dismissal was fair:
Question 1: Is there a Potentially Fair Reason to Dismiss.
Your employer must be able to show that you were dismissed under one of the 5 potentially fair reasons to dismiss. These are:
- Some Other Substantial Reason
Each of the potentially fair reasons have their own specific test. It is therefore important you take legal advice to see if your dismissal falls under a potentially fair reason.
Question 2: In All the Circumstances, Was the Decision to Dismiss Reasonable.
If your employer can rely on a potential fair reason (discussed above), the next stage is to look at whether the decision to dismiss you was reasonable. The applicable test is whether a reasonable employer would have made the same decision as your employer.
There are several elements to this test, including:
- Did your employer follow a proper and reasonable procedure?
- Was the decision to dismiss a reasonable sanction?
- Did your employer act consistently?
Should I Appeal my Dismissal?
It is important that you appeal any decision to dismiss you. This is your final chance to put forward your submissions as to why you consider it was not reasonable or fair for your employer to dismiss you.
There are strict time limits for bringing a claim of Unfair Dismissal in the Employment Tribunal. You must commence ACAS Early Conciliation within three months less one day from your dismissal. For example:
- If you were dismissed on 05 June 2023, you must start ACAS Early Conciliation by 04 September 2023
These deadlines are strictly adhered to by the Employment Tribunal. If you do not start ACAS Early Conciliation within this three-month window your claim will be deemed out of time, and you will not be entitled to progress to the Employment Tribunal (subject to a few very limited exceptions).
Appealing your dismissal does not pause or suspend the time limit to start your claim. Whilst it is important to raise an appeal, you should always be aware of the deadline to start your claim. If you are approaching that deadline and your appeal is still outstanding, my advice would be to always commence ACAS Early Conciliation and safeguard your position.
How Can Lincs Law Employment Solicitors Help You?
If you are dismissed by your employer, it is important that you take legal advice as soon as possible.
Lincs Law Employment Solicitors offer a free telephone enquiry service to anyone facing employment problems. Please call us on 01552 440512 for a free, no obligation, phone call. For more information on the services we offer, please visit our website: https://lincslaw.co.uk/services/employees/
Specialist Employment Solicitor