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Wrongful and Unfair Dismissal
Whether you are an employer or an employee, dismissing a staff member or being dismissed is never easy and is often extremely stressful.
At Judge & Priestley, we assist both employers and employees with legal matters surrounding dismissal and ensure legal policy surrounding dismissal has/is being complied with
Wrongful dismissal is where an individual is dismissed from his or her employment in breach of contract. It differs from unfair dismissal in that it is based on contract law. If someone is wrongfully dismissed they may claim compensation for all financial and other benefits that would have been received had they been dismissed in compliance with the contract (e.g. had they remained employed until the end of their notice period, or until the end of the contract's fixed term).
With our expertise in both employment and contract law, we can advise you if you find you have been wrongfully dismissed. Our employment team is dedicated to achieving results for our clients in a cost-effective manner; therefore, we will try to use non-litigious methods such as mediation to resolve your dispute and obtain compensation. If litigation is inevitable, we can advise you on your options and provide strong representation for you.
Under Section 94 of the Employment Rights Act 1996, all employees have the ability to bring a claim and seek damages for unfair dismissal. For employees starting fresh employment on or after 6 April 2012, the right not to be unfairly dismissed generally only arises when the employee has been continuously employed for at least two years.
If a claim for unfair dismissal is brought before the Employment Tribunal, the tribunal will need to establish:
- Whether or not the employee was dismissed; and
- Was the employee dismissed for a potentially fair reason
Potentially fair reasons for a dismissal include:
- retirement (although this is now subject to transitional provisions, with effect from 6 April 2011 as the default retirement age is being phased out)
- breach of statute
- some other substantial reason
Automatically Unfair Dismissal
In certain situations, any dismissal will be deemed automatically unfair. These include any dismissal relating to an employee:
- Taking, or seeking to take, leave for family reasons including pregnancy, maternity leave, paternity leave, adoption leave, childbirth and parental leave;
- Taking leave for family emergencies or to care for dependants;
- Performing certain health and safety activities;
- Refusal of Sunday working by shop and betting employees;
- Performing certain working time activities under the Working Time Regulations;
- Performing certain functions as a trustee of an occupational pension scheme;
- Performing certain functions as an employee representative under the TUPE or collective redundancies legislation;
- Making a protected disclosure (e.g. whistle blowing);
- Asserting a statutory right;
- Seeking to exercise the right to be accompanied or to accompany a fellow worker at a disciplinary and grievance hearing;
- Taking certain steps under the National Minimum Wage Act 1998;
- Seeking to exercise the right to flexible working;
- Because they are a part-time worker;
- Participating in ‘protected’ industrial action;
- Performing certain functions in relation to trade union recognition;
- Participation in trade union membership or activities;
- Exercising rights under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002;
- Undertaking jury service.
Employers must follow the Acas Code of Practice on Disciplinary and Grievance procedures. Even if the reason for the dismissal is found to be fair, an employer can still be found to have dismissed an employee unfairly if he or she failed to follow these procedures when conducting the dismissal.
How We Can Help
Wrongful and unfair dismissal can be complex, requiring many procedural elements of the dismissal to be investigated in order to establish unfairness or wrongdoing. Our employment solicitors have the required experience and expertise to advise both employers and employees on issues regarding dismissal, and provide representation in mediation, arbitration or litigation where necessary.
To talk to us further please fill in our contact form or call Paul Stevens on 0208 290 7422 to make an appointment.