As an employee, it is your legal right to be dismissed in a fair manner by your employer. Fair reasons for dismissal include (but are not limited to) continually being absent from work, substandard discipline, substance abuse and criminality.
An unfair dismissal claim is a statutory right governed by the Employment Rights Act 1996, which can only be exercised before an employment tribunal.
A dismissal may be considered unfair in a number of ways. An employee may feel that their employer ended their employment unfairly, either due to the reason given for their dismissal (for example, being dismissed based on a false allegation of incompetence) or the way in which they were dismissed (for instance, being dismissed without following disciplinary procedures).
There are some reasons for dismissal that are automatically unfair and entitle the employee to bring an unfair dismissal action. A dismissal in which the employee exercised, or tried to exercise, their statutory rights qualifies as an automatically unfair dismissal. This would include an employee’s right to maternity leave.
This was the case for Rebecca Raven, an art teacher who was dismissed after requesting maternity leave. The school claimed that Raven’s dismissal was by way of redundancy. However, a tribunal found in Raven’s favour.
In his ruling, Judge Thompson said, “…the reason for the dismissal in this case was the claimant’s pregnancy/maternity leave and as such was automatically unfair, contrary to the Employment Rights Act 1996.”
Aside from cases in which the reason for dismissal is automatically unfair (in which an employee can make a claim for unfair dismissal regardless of the length of time they have been employed), in normal circumstances an employee can only instigate unfair dismissal proceedings if they have at least one year’s continuous service under their belt (two years’ service if they started work on or after 6 April 2012).
In either circumstance, an employee must bring an unfair dismissal action within three months of being dismissed. Compensation, or ‘damages’, is intended to restore the employee to their financial position before dismissal. Damages are calculated on the basis of loss of earnings and are limited to £72,300 for events occurring on or after 1 February 2012.
Crucially, unfair dismissal requires a dismissed employee to be just that – an employee – rather than a self-employed individual. Nadine Quashie, a former lap dancer, was granted the right to sue Stringfellows – the celebrity strip club that dismissed her – after an appeal tribunal found that she was technically an employee.
“This serves as a potent reminder to all businesses that it is not the label given to the employment that matters, but what actually happens in practice,” said Jo Keddie, a partner at Winckworth Sherwood. “If the reality of the relationship, as in this case, is found to be one of employment, then the business will be exposed to a raft of legal obligations…most importantly, taking care in how the relationship is ended.”
There are certain situations in which an employee feels compelled to resign from their job due to their employer’s conduct. This too is a form of dismissal, known as constructive dismissal.
An employee leaving their place of work under these circumstances must prove that their employer has committed a serious breach of the employment contract, which caused them to leave their job and they have not acted in any way that could be interpreted as having accepted the breach.
Stella English, series six winner of the popular reality television show, The Apprentice, is so unhappy with the treatment she received from Lord Sugar – the UK’s self-proclaimed “most belligerent boss” – that she is bringing legal proceedings against him for constructive dismissal.
English asserts that, contrary to claims made on The Apprentice, the winner would secure a job working directly for Lord Sugar, but she was placed in a company that he did not run, where she had no defined role and had next to no contact with him.
English describes her former role as one she would not have applied for “in a million years” had it been advertised. She claims that, not only was she over-qualified for the role, but she had to report to a manager who was more junior than herself. According to English this experience, coupled with employees who were advised not to follow her instructions, forced her to resign from her £100,000-a-year job. Lord Sugar denies the claims and the case is still pending.
photo by: remco