What is unfair dismissal?
Under statutory employment law employees have the right to complain to an Employment Tribunal that their dismissal was unfair or unreasonable. In most cases the employee will need to have been employed for two years in order to pursue a claim for unfair dismissal – there are exceptions to this rule in cases of automatically unfair dismissal.
In addition to arguing that their dismissal is unfair, an employee might allege that it is also discriminatory on the grounds of race, sex, disability, religion, political opinion, sexual orientation or age.
It would always be recommended that employees seek the advice of a specialised employment lawyer at an early stage to ensure that all appropriate claims are brought within the three months less one day time limit. Thompsons' solicitors in Scotland are here to help and we only ever work for claimants as we are passionate to upholding worker rights.
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When can a dismissal be fair?
The law says that it may be fair for an employer to dismiss an employee for one of the following reasons:
- Misconduct which the employer believes was committed by the employee at work.
- Lack of capability (or qualifications) to do the job
- Redundancy
- Some other substantial reason
- A statutory requirement prevents the employer from continuing to employ the individual
Even if the employer convinces a Tribunal that they dismissed the employee for one of the above reasons, they still have to show that they followed a reasonable procedure as set out in the ACAS Code of Practice. They must also show that the decision to dismiss fell within the range of reasonable responses open to an employer. The law in this area is complex and our employment lawyers can advise whether a claim challenging the employer’s decision is likely to succeed. However, as time limits are short we recommend seeking specific detailed advice at the earliest opportunity.
What is an automatically unfair dismissal?
Certain dismissals are “automatically unfair”. Where an employee is alleging that they have been dismissed for an automatically unfair reason, there is no qualifying period required in order to pursue such a case (i.e. an employee does not need to be employed for two years before bringing such a claim). Examples of automatically unfair dismissals include cases where an employee’s employment is terminated due to:
- a protected disclosure made under the whistleblowing legislation which was in the public interest;
- health and safety activities;
- action taken to enforce certain statutory employment rights;
- pregnancy or maternity leave;
- parental leave, paternity leave, adoption leave or emergency time off to look after dependants;
- an application for flexible working;
- taking action in connection with part-time or fixed term workers’ rights.
- a refusal to give up a right under the Working Time Regulations;
- action taken to enforce their right to the National Minimum Wage;
- an employee’s functions as a pension fund trustee;
- the employee’s work being transferred to another employer under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE);
- acting as an employee representative for the purposes of collective redundancy consultation; for the purposes of consultation under the Transfer of Undertakings (Protection of Employment) Regulations; or consultation pursuant to the Information and Consultation of Employees Regulations;
- taking part in lawful industrial action;
- membership (or non-membership) of a trade union;
- trade union activities;
What is constructive dismissal?
Constructive dismissal is when an employee resigns in response to a significant and fundamental breach of their contract of employment by their employer.
In a typical unfair dismissal case, it is usually clear that the employee has been dismissed and it is then for the employer to establish a fair reason for that dismissal. In a constructive dismissal case, the employee has resigned and on the face of it there has been no dismissal by the employer.
Not every breach of contract will entitle an employee to resign and claim constructive dismissal . To claim constructive dismissal the employee will need to have resigned fairly soon after the breach of contract occurred.
However, an employee should think long and hard before resigning as constructive dismissal cases are notoriously difficult to win. Seeking expert employment law advice as soon as possible will be crucial when making such a decision.
Once the employee has resigned they will have no income and there will be no guarantee that they will have a viable claim for constructive unfair dismissal.
A claim for constructive dismissal must be lodged with the Tribunal within the three months less one day time limit of the last day of employment.
Thompsons unfair dismissal solicitors
Thompsons is a multi-award-winning firm which specialises in representing employees. We have offices throughout Scotland, including Glasgow, Edinburgh, Aberdeen, Peebles, Galashiels and Dumfries. We also act as panel solicitors for a number of major trade unions. We are skilled in negotiating settlement agreements and in providing representation at Employment Tribunals and Employment Appeal Tribunals.
In many cases we can act through legal protection built into your individual insurance policy which would contribute towards the funding of your case; however, and if you do not have access to Legal Expenses Insurance, once an employment lawyer has assessed your claim we may be able to offer you a form of No Win No Fee agreement - meaning that you don’t pay any further sum if we can’t successfully resolve your claim - we will cap our fees based on a percentage of the compensation secured.
We can offer an initial consultation at a time convenient to you. Simply fill out a Call Back Request so that we can be in touch.
