Employment Law Services — Employees
Employment law FAQ for employees
I think I have been unfairly dismissed but have heard I can’t claim unfair dismissal unless I was continuously employed for more than two years prior to the dismissal. Is this correct?
Usually you do not have the statutory right not to be unfairly dismissed until you have been employed for two full years, without any breaks. It is one year for those employed before April 2012. However there are a number of exceptions to this rule so it is always worth taking legal advice. Exceptions include health and safety related dismissals, dismissals for asserting certain statutory rights (including under the Working Time Regulations), maternity and paternity related dismissals, dismissals of pension trustees, employee representatives, European Works Council members and shop workers who refuse to work on Sundays, selection for redundancy on discriminatory grounds, dismissals on the transfer of an undertaking (including in-sourcing, out-sourcing, retendering, business sales or a key client moving their work), dismissals on the ground of a spent conviction, whistle-blowing related dismissals, and some union related dismissals.
Also there are other claims which can be brought within the first year of employment including breach of contract and discrimination claims (on the grounds of sex, race, disability, religion, sexual orientation, age or fixed term or part time employment status). Discrimination claims can arise in fact before any employment commences and even before it is offered e.g. where discrimination is alleged within the recruitment process.
If you have 103 weeks or more continuity of employment at dismissal it is worth taking legal advice, as sometimes, where you are dismissed without notice, for the purpose of determining whether you have sufficient continuity to bring an unfair dismissal claim, your one week’s statutory notice may be added to the length of your actual employment potentially extending your continuous employment over the two years required to bring an unfair dismissal claim.
It is also worth taking urgent legal advice if you are notified of disciplinary proceedings or put at risk of redundancy when you are close to having the two years continuity usually needed to found an unfair dismissal claim. It may be possible to delay the impending dismissal just long enough that you would qualify to bring a claim if the dismissal transpires to be unfair.
How long do I have to bring an unfair dismissal claim?
The claim must be filed with the appropriate Employment Tribunal within three months of the dismissal – not including the third month anniversary. Therefore if you were dismissed on 23rd May you would have until 22nd August to file your claim. This time limit is extremely strict and if missed even by a few minutes you risk your claim being time-barred, i.e. the Tribunal would not have the jurisdiction to hear your claim. The time limit for bringing an employment tribunal claim is not extended just because you might have an appeal against dismissal still outstanding.
If you wish to bring an unfair dismissal claim it is advisable to take legal advice as early as possible. You may also have other related claims where limitation runs from an earlier date, e.g. in a discrimination claim limitation runs from the date of the act or omission complained of, so you may be arguing your dismissal was unfair and discriminatory, but you may also wish to claim in respect of discriminatory acts which preceded the dismissal.
What procedure do employers have to follow in a dismissal situation?
- capability (which includes performance and ill health)
- dismissal where continued employment would breach some other statute
- some other dubstantial teason (sufficient to warrant dismissal)
For most dismissals employers should follow the ACAS Code of Conduct on Disciplinary/Grievance Procedures and their own disciplinary procedure (if contractual). Generally this will involve writing to the employee setting out the grounds which are causing them to consider dismissal and inviting the employee to attend a meeting. The employer should then meet with the employee to discuss matters, before writing to confirm the dismissal (or other sanction). The employee should be offered a right of appeal by a full rehearing.
A slightly different procedure involving collective consultation before individual consultation applies where 20 or more staff are being made redundant from one undertaking within a three-month period.
In most cases if a fair procedure is not followed the employee will, if he or she has sufficient continuity of employment, have a claim for unfair dismissal.
An Employment Tribunal may “if it considers it just and equitable in all the circumstances to do so” increase or reduce any award by no more than 25% for non-compliance with the ACAS Code (where it applies). Whether there is an increase or a reduction will depend on whether it is the employer or the employee who is found to have unreasonably failed to comply with the Code.
A dismissal will be potentially fair if it is for one of the five potentially fair reasons for dismissal:
and it is procedurally and substantively fair. A Tribunal will ask itself whether the employer’s response to the matters which caused it to consider dismissal (misconduct/underperformance/capability etc) was within the range of responses which might have been considered in that situation by a reasonable employer.
Does an employer have to use disciplinary and dismissal procedure if the employee has been employed for less than two years?
Mostly employees with less than a year’s continuity of employment cannot bring unfair dismissal proceedings so many employers don’t bother using the ACAS or their own procedures with these employees. This is unwise however because they may, unbeknown to the employer, have other claims e.g. discrimination claims and the employer risks increasing the size of the claim it faces by not following the statutory procedure.
I have been called to a disciplinary meeting and have been told I may be accompanied by a colleague or union representative. I am not a union member and don’t want to ask a colleague, can I take a friend or relative?
You can ask your employer but your legal entitlement is only to have a colleague or union representative accompany you so your employer can, and probably will, refuse your request. Most employers will not permit you to be legally represented within internal grievance or disciplinary hearings, however there is still a lot we can do to assist you during internal proceedings, and the earlier you take legal advice the more we can do for you. We can assist in resolving your grievance or in averting a likely dismissal or downgrading the severity of other disciplinary sanctions being considered. In appropriate cases we can also try to negotiate severance terms whereby your employment might terminate with some compensation for the loss of your employment and an agreed form of reference, thereby avoiding the stigma of a dismissal which would have a more detrimental effect on your future employment prospects
I have been told I am at risk of redundancy and have a consultation meeting tomorrow.
What should I ask?
- Any thoughts you have had regarding ways in which your redundancy might be avoided e.g. losing any agency or temp workers or contractors first.
- The number of people being made redundant at your undertaking overall.
- The reasons for redundancies being considered.
- How you have been selected as being at risk.
- Who else is in the same selection pool as you.
- How the employer proposes selecting which employees in the pool to retain and which it will make redundant (e.g. will it be last in first out?)
- Whether a selection matrix is being used, and if so what your individual scores were.
- If you consider your scores were unfair or the selection criteria themselves are discriminatory you should challenge this (e.g. if attendance is a selection criteria maternity related absence, paternity leave, time off for family emergencies should be ignored and an extra “tolerance” might be allowed for some increased absence related your having a disability).
- Whether the employer has any other positions available, and if so whether you might be considered for them, and if not why not.
You should ask about:
You might also wish to ask what your entitlements will be if you are made redundant. Some employers will pay only statutory redundancy pay (see the calculator on the BERR website) plus your notice (which you may be required to work) whereas others are more generous.
I have been given a Compromise Agreement and need to take legal advice on it. What is its purpose?
Sometimes in a redundancy or dismissal situation or in settling a grievance an employer may ask the employee to sign a Compromise Agreement. This is an agreement by which you may settle, waive or compromise any claims you may have against your employer/former employer. It will only be valid to prevent you from bringing proceedings against your former employer if you first take independent legal advice on the terms and effect of signing the agreement on any claims you may have. For this reason your employer may contribute towards the cost of your taking this advice. As well as explaining the terms of the agreement to you, your solicitor should discuss what claims, if any, you may have to assist you in deciding whether the sums being offered under the Compromise Agreement are reasonable bearing in mind the prospects and value of any claims you may be giving up.