Do you have a claim?
Dismissals are the area of employment law that give rise to the greatest number of potential legal claims.
If you are dismissed, or threatened with being dismissed it can be very traumatic, but it is important to be guided properly by a qualified solicitor.
Many employees cannot face the possibility of dealing with enforcing their rights on their own, quite understandably, because of the complexity and technical nature of unfair dismissal law.
As a result, they end up losing their entitlement to thousands of pounds of compensation, a possible claim for reinstatement, or sometimes end up fighting a claim which has little chance of success on their own, resulting in additional unnecessary stress.
We can advise you of your rights based upon your particular circumstances. For instance:
- you may be entitled to your job back (if you wish)
- you may have a claim for compensation for a fixed statutory award, plus losses for lost wages for the time that it takes you to find a new job
- you may be able to claim for mental distress depending on how you have been treated during your employment prior to dismissal
- if you have not yet been actually dismissed but have been treated in such a way that you are entitled to resign because the way in which you have been treated by your employer amounts to a serious fundamental breach of contract by your employer, you may be entitled to claim ’constructive dismissal’.
You only become entitled to claim unfair dismissal after you have been working for the minimum period of time of two years. This was a change introduced by the present government, which has reduced workers’ rights.
But you still have other rights if the reason for your dismissal is, for instance whistle-blowing or discrimination (based on a ’protected characteristic’).
The exception to that is if the cause of your dismissal can be proved to be gross misconduct.
So what is gross misconduct? Briefly, it is any very serious breach of the employment contract. Examples may be theft, fraud, abuse/assault on a colleague, or wilful repeated refusal to obey lawful instructions from a manager. If it cannot be classed as ’gross misconduct’ it may still be ordinary misconduct’, in which case, if it was proven, it would justify a warning, which would be put on your HR record. If you have two or three warnings within a couple of years, a dismissal might be justified after that.
But if there is a dispute about the facts, the employer needs to show that it has acted reasonably and on evidence which would stand up before a tribunal as more likely to be true than not.
This is where the employee is alleged to not be able to do his/her job due to a lack of skill or competence or aptitude, rather than deliberate incompetence.
This is also a common ground used to justify dismissals. However, to argue it, an employer must show that it has gone through a proper systematic procedure before taking the drastic step of dismissal.
All necessary training and management must have been provided. There must be clear objective evidence of the incompetence over a period of time, despite opportunities being provided for improvement and the employee being given notice of where he/she is falling short.
If there is any hint that the employer is using the using any of these above two main grounds as an excuse to get rid of an employee who is simply perceived as expensive, surplus to requirements, difficult or otherwise unwanted, the dismissal is likely to be unfair.
Furthermore, the employer is under particular duties where any alleged incapability occurs in circumstances where the employee suffers from a disability. This could give rise to a claim for disability discrimination under the Equality Act 2010. For that, you do not even have to have two years service with the employer, and compensation is not subject to a predetermined cap.