Employment relationships come to an end for various reasons. An employee may want to embark on a new career or an employer may require new employees with different skill sets. Provided there is a fair reason for the employment relationship ending and the proper procedures are followed, dismissal can result in a clean break for both the employer and the employee.
There are, however, circumstances in which dismissal may be unfair, allowing an employee to take legal action against an employer. Our specialist lawyers have extensive experience helping employees enforce their rights following unfair dismissal and can assist employers to follow the correct procedures to avoid any potential liability. For more information or advice, please contact us.
Unfair Dismissal & Employment Rights
Employees employed under an employment contract, with the required length of service, have the right not to be unfairly dismissed. If they are unfairly dismissed, a claim can be brought against the employer in an employment tribunal.
Dismissal can occur because the employer terminates employment (with or without notice), the employee resigns because the employer fundamentally breaches a term of the employment contract (also known as constructive dismissal) or a fixed-term contract expires. When employment comes to an end by mutual agreement, such as by the employee taking voluntary redundancy or choosing to retire early, the termination of the employment relationship does not usually amount to dismissal.
There are two types of unfair dismissal claim:
- Ordinary unfair dismissal – the employee must have been continuously employed for two years in order to bring this claim; or,
- Automatic unfair dismissal – the employee must have been dismissed for a specific reason that has been prohibited by law, in which case no period of qualifying service is usually required.
Assessing whether a dismissal has been unfair follows a two stage test. A tribunal would consider whether the reason for the dismissal was a fair reason in the context of the legislation and whether, in the particular circumstances of the case, the employer’s decision to dismiss the employee was within the band of reasonable responses open to them.
The potentially fair reasons for dismissal as set out in the legislation are (i) lack of capability; (ii) misconduct; (iii) redundancy; (iv) statutory contravention; and (v) some other substantial reason. If an employer can establish that there is a fair reason for dismissal, they must then show that the sanction of dismissal was reasonable. It is important to note that a dismissal will not be unfair simply because the tribunal would have made a different decision, provided that the employer’s decision is objectively justifiable and falls within the band of reasonable responses.
Dismissal will automatically be unfair if an employment relationship is terminated for a reason prohibited by law, such as:
- For making a flexible working request;
- For needing or taking pregnancy or maternity leave;
- For needing or taking paternity or adoption leave;
- For needing or taking parental leave to look after dependants;
- Asserting statutory rights, such as the right to annual leave or the minimum wage.
It is important to keep in mind that it is usually only possible to bring a claim for unfair dismissal in the three months immediately following termination of employment. For more information about whether you have been unfairly dismissed, please contact our expert employment law and unfair dismissal claim solicitors.
If an employee has been unfairly dismissed and they successfully bring a claim against their employer, they may be entitled to be reinstated or compensated for loss of income and other benefits, such as pension payments.
Unfair Dismissal Claims in Edinburgh and Wick
If you are an employee and you think you may have a claim for unfair dismissal or if you are an employer and are concerned that you may have dismissed an employee unfairly, our expert employment lawyers can provide you with honest and straightforward advice. For clear advice and assistance about Employment Law, contact our expert team at BBM Solicitors by calling us in Edinburgh 0131 526 3280, Wick 01955 604188 or by filling out our enquiry form.