You’re fired!
If your contract is terminated, you generally won’t have a claim
against your employer if the terms of your contract of employment have
been observed and you have been dismissed on grounds that are fair and
your employer has acted reasonably.
Your employer can dismiss you at any time, but you must normally be
given a period of notice. The length of notice will vary according the
length of time you have been continuously employed by the organisation,
broadly corresponding to one week for each complete year’s employment to
a maximum of 12 weeks. If you have agreed to a longer notice period in
your contract, then that applies.
During your notice period, you should be paid at your normal rate, even
if you are away on sick leave, holiday or maternity leave during the period,
or are willing to work but none is provided.
Summary dismissal
Instant dismissal is sometimes justified – for instance, where an employee’s
behaviour makes their continuing employment untenable. This is known as
gross misconduct.
Wrongful dismissal
You are entitled to bring a claim for wrongful dismissal and seek damages
from a civil court or an employment tribunal if there has been a breach
of contract by your employer. A tribunal can order a maximum payment of
£25,000 for a successful claim and there is no maximum award in the
courts.
The most common breach of contract is the failure to give sufficient
notice of the contract’s termination. But if your employer breaches a fundamental
term of your contract, for example, by requiring you to perform unreasonable
duties, asking you to do something illegal, or failing to pay you, you
may resign on the basis that you have been ‘constructively dismissed’.
You can then bring a claim for wrongful and/or unfair dismissal.
Unfair dismissal
If your employer has continuously employed you for at least one year, and
you were under normal retirement age at the time you were dismissed, you
have a statutory right not to be unfairly dismissed.
If you’ve been employed for at least one year, your employer must give
you written reasons for your dismissal – but only if you actually request
them. Then they must be given within 14 days of request. But a woman who
is dismissed while pregnant or on maternity leave must always be given
written reasons, regardless of length of service and regardless of whether
or not she requests them.
There are certain circumstances under which your dismissal is automatically
unfair, and except for in the case of the transfer of a business, the one-year
qualifying period does not apply. They include, if the reason for your
dismissal was:
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trade union membership or activities or not being a trade union member;
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pregnancy or taking maternity leave;
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health and safety;
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seeking to enforce a statutory employment right;
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refusing to do shop or betting work on a Sunday
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the transfer of a business.
If you think you may have been unfairly dismissed, consider the following:
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Are you incapable of doing the job specified in your contract? Reasons
for being incapable include incompetence and ill health.
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Has your conduct been unacceptable examples of unacceptable conduct are,
theft, fighting, a poor attendance record, bad time-keeping, taking drugs
or being drunk at work, and abusive behaviour. Accessing the Internet for
personal use is a fairly new addition to the list.
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Is there a legal requirement that prevents you from continuing to do the
job? – An example would be if your work requires that you drive and you
lose your licence.
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Has your employer’s need for you to do your job stopped or lessened, or
is it about to? – If it has, you could be made redundant and if you have
been employed for two or more years you are entitled to a redundancy payment.
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Are there any statutory restrictions on either you or your employer which
prevent your employment being continued – would your employer be breaking
the law by continuing to employ you?
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Is there any other substantial reason for your dismissal?
If you can answer ‘yes’ to any of these and if it constitutes the main
reason for your dismissal, then it is a fair dismissal, unless your employer
acted unreasonably in deciding to dismiss you rather than, for example,
taking some other form of disciplinary action. There are no hard and fast
rules about this – what is reasonable will depend on the circumstances,
and the size and resources of your employer’s business. If the way in which
your dismissal was handled was unfair, an unfair dismissal claim can still
be made.
If the answer is ‘no’, you may be able to make a claim at an employment
tribunal, and any such claim is in addition to any claim for wrongful dismissal
that you might also have.
You must generally bring your complaint before an employment tribunal
within three months of dismissal and you can claim reinstatement, re-engagement
or compensation. If the tribunal hears your complaint, it will consider
the arguments put forward by both parties and come to a decision. Tribunals
can give compensation in the form of a basic award and a compensatory award.
The basic award is calculated according to your age, length of service
and level of pay, to a maximum, in most cases, of £6900. The compensatory
award can be whatever the tribunal deems to be just and equitable, to a
maximum of £50,000.
Some workers are not eligible to complain to an employment tribunal,
they include:
- self-employed people and independent contractors
-
most people working outside Great Britain
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certain other groups including some working at sea and some public servants.
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