Unfair Dismissal Solicitors in Manchester
Employment tribunals apply strict rules to determine the fairness or unfairness of a dismissal. As part of the process, they scrutinise the fairness of the employer’s procedures. It is all too easy to dismiss an employee for a ‘morally’ just reason but still be tripped up in a tribunal because of poor procedures.
Additionally, the inevitably high cost of defending a claim means that the employers have lost out financially from the moment unfair dismissal proceedings are brought against them, regardless of the eventual outcome.
What is unfair dismissal?
In most cases, the right not to be unfairly dismissed is limited to employees who have accrued at least two years’ unbroken service.
Employees who qualify for the right not to be unfairly dismissed are entitled to present a claim to an employment tribunal in the event that they are expressly dismissed by their employer or if they resign in response to a serious breach of contract on their employer’s part.
In responding to a claim of unfair dismissal, the employer must be able to show that the dismissal was for one of five permitted fair reasons and that it was fair to dismiss as opposed to and imposing some lower sanction e.g. a written warning.
Automatically unfair dismissal
Enhanced protection is afforded to employees (and the broader category of workers) who are dismissed or suffer a detriment as a result of having asserted a statutory right or otherwise performed one of a special category of acts. Protected acts include the making of a protected disclosure (whistle-blowing), taking time off from work to provide assistance to dependants in an emergency, and taking steps (or refusing to carry out instructions) where there is an imminent danger to the health and safety of themselves or others. A full list of protected categories can be found here.
Where an employment tribunal finds that the reason (or principal reason) for dismissal is that the employee had performed a protected act, the dismissal will be automatically unfair. In most cases (there are a few exceptions), the employee is eligible to claim from day one. In other words, the minimum two year period of service is not required.
Express dismissal / Constructive dismissal
Express dismissal, as its name suggests, is where an employer terminates an employee’s employment, either orally or in writing, using words which are clear and unequivocal. “You’re fired!” is an example of clear and unequivocal language although it does not specify whether the dismissal is with or without notice. Depending upon context and the circumstances of the case, other forms of words (i.e. ‘clear off’ and stronger alternatives to this phrase) can also amount to dismissal. If dismissal is denied by the employer, it falls to the employee (the claimant) to prove either that he or she has been expressly dismissed or that he or she resigned in response to a serious breach of contract on the employer’s part. A resignation in these circumstances is known as a constructive dismissal. In practice, a constructive dismissal will usually be unfair.
Defence against a claim
An employer facing a claim of ordinary unfair dismissal (see above) will need to show either that it did not dismiss the employee or, if dismissal is admitted, that the dismissal was for one of the five potentially fair reasons recognised in law and that the dismissal fell within the so-called “band of reasonable responses.” The employer will also need to demonstrate that fair procedures were followed at all stages including investigation, disciplinary hearing and in any appeal.
Contact Ralli Solicitors for unfair dismissal advice
We also help provide robust processes that aim to reduce the risk of successful claims. Contact our employment team today on 0161 832 6131.
Find out more on our Employment Law page.