Types Of Dismissal Claims
If you have recently been fired, you are likely feeling frustrated and eager to seek justice for the way you have been treated. This article will guide you through the various types of dismissal claims, to help you understand if you might have a potential case against your employer. Regardless of your end goal, whether it be compensation for unfair treatment or holding your employer accountable for contractual commitments, you will need to take quick action.
Your first step should be identifying the nature of the potential claim.
Can I claim for Unfair Dismissal?
For most people, the first type of claim which comes to mind is unfair dismissal, despite the eligibility criteria being fairly strict and narrow. There are two types: ordinary unfair dismissal and automatic unfair dismissal, and there are some differences between the processes of these.
You will need to first understand if you are eligible.
1. Employment status
The law categorises the status of a person’s employment based on certain characteristics determining their rights and responsibilities. There are two main types: ‘worker’ and ‘employee’. For an unfair dismissal claim you will need to be an employee.
You are likely to be an employee if:
- You were required to go to work regularly for a minimum number of hours.
- You expected to be paid for the time you were working.
- You could not send anyone else in your place.
- Your workload was determined by a supervisor or manager.
- Your contract explicitly used terms such as employer and employee.
If you find yourself agreeing to most of these, then you are likely to be considered an employee and can move to the next step.
2. Length of service
The length of time you have been with your employer will be taken into account. For ordinary unfair dismissal, you must have two years of continuous service with your employer and your employer will not be able to stop counting this time for any breaks like maternity leave.
For automatic unfair dismissal, there is no minimum continuous service and your eligibility is established from day one of your employment.
If you have the right employment status and length of service, you will be eligible and can turn to the circumstances of your dismissal.
Reasons for dismissal
To take a claim forward, you need to establish that either your employer’s reason and/or the process they followed was unfair under the law.
To assist this distinction, there are five reasons where an employer can fairly dismiss an employee. If you believe that their reason does not fall into one of the circumstances below, you might be able to progress your claim.
Capability or performance
If an employee lacks the skill or capability to perform the job they were recruited to do, this may give their employer an adequate reason for dismissal. Before reaching this point, the employer must have taken steps to assist them.
If your employer raised concerns about your performance and immediately dismissed you, this is likely to be unfair. However, if they have implemented additional training, you have been on a performance improvement plan and this did not improve, they are more likely to be justified in dismissing you.
Usually, this involves an employee failing to follow the conduct expected and set out in their policy or guidelines for the company. This could be general misconduct such as consistent lateness (even by only 2 minutes!) or one-off gross misconduct like violence, fraud or drug abuse.
If you fall short of your employer’s conduct expectations, they could commence termination action. The steps taken need to be consistent with the severity of the conduct breach. So, if you have turned up late for one shift, a warning is likely to be the initial first step and an immediate dismissal is unlikely to be a fair course of action.
If you have stolen from your employer, however, a dismissal is likely to be considered the most appropriate course of action. Although, in these instances of gross misconduct, you must have been aware that your behaviour could have resulted this way. Your employer could demonstrate this by showing they warned you and included it in a written policy or training.
Illegality or breach of statutory duty
This is less common than others but can be exercised by an employer if continuing someone’s employment will result in them breaking the law.
If you are employed as a driver and have lost your license and no other work is available by your employer as an alternative, they may be able to fairly dismiss you on these grounds.
Redundancy refers to circumstances when a role is no longer required. This could be if a company is facing financial pressure and needs to cut costs by reducing the headcount.
Remember, it is the job that is redundant, not the individual. This means that the role should no longer exist after the employee is dismissed from employment.
If your employer has made you redundant but has then hired someone else into your old position or an incredibly similar one, it might suggest the redundancy was unfair.
Some other substantial reasons
This term is deliberately ambiguous and acts as a catch all category when a reason does not naturally fit under one of the others. This can include an employer protecting themselves from reputational damage from an employee with criminal charges.
Whilst this category does broaden the scope a little, your employer must have a very strong case for this and should be able to demonstrate reasonableness in their approach.
Automatically unfair reason
There are some reasons for dismissal which are automatically unfair. If your employer’s main reason for your dismissal was one of the below, it could be deemed ‘automatically unfair’.
- Requesting flexible working arrangements.
- Being pregnant or on maternity leave.
- Conducting jury service.
- Becoming a trade union member or representative.
- Taking part in industrial action of an official capacity for less than 12 weeks.
- Taking action, or proposing to commence action against a health and safety issue or concern.
As established, for automatic unfair dismissal, there is no minimum continuous service and eligibility is established from day one of employment. Therefore, if an employee is dismissed for an automatically unfair reason, they will have a valid claim.
Even if your employer can show that they had a valid reason for your dismissal, if they did not follow the right process, you may still be able to make a claim. Common breaches include serving the wrong notice or not giving a fair opportunity to appeal.
Be mindful that they will be able to gather evidence against you and if your social media pages are public, they can use your posts as evidence. However, frustrated Facebook posts about your employer are unlikely to be enough alone for a fair dismissal.
If you do not think your dismissal will qualify as unfair dismissal, you can look at other options.
Constructive Unfair Dismissal
Constructive dismissal claims arise when an employer has behaved badly and is in breach of the mutual trust and confidence between them and their employer. This can include adopting a management style of humiliation and intimidation or changing the working hours of parents to times when they do not have access to childcare.
Their behaviour can be a standalone action or an accumulation of events. Even if the final straw which triggered the termination was fairly minor, an employee can rely on the previous employee’s action.
Similar to unfair dismissal, you must have the status of ‘employee’ as outlined earlier. You also are likely to need to have worked for your employer for at least 2 years to pursue a claim.
If you have not resigned yet, we can help to assess if the evidence supports a substantial breach. This is important as if you choose to stay in your role, your employer could you this as evidence that you accepted the conduct, which will impact your claim.
Wrongful dismissal, in practical terms, constitutes a breach of contract between an employer and an employee. This can happen when an employment contract is terminated earlier than the agreed employment term or if the terms have been breached, commonly through a failure to provide notice.
The employee’s level is relevant in wrongful dismissal claims, therefore even an apprentice can claim if their contract was ended before the completion of their apprenticeship.
However, the damages that you receive will be limited to the length of your notice period. Therefore, pursuing a claim might not be worthwhile if your notice period was limited.
Each type of claim has a different legal criterion. Understanding these requirements is crucial to be able to succeed with a claim.
Our dedicated team ensures swift, effective action to safeguard your rights and manage your claim effectively.