. An unfair dismissal is when an employer’s reasons for terminating an employee’s employment contract, are different from the requirements under the Employment Rights Act 1996. If you feel as though your employer ended your employment unfairly, either because of the reason you were dismissed, or the process that was used, then you may have been unfairly dismissed and may be able to complain to your Employment Tribunal. An employee cannot claim for any type of unfair or wrongful dismissal without being deemed as an employee and have worked continuously for one year under the employer they are claiming against.
There are different areas of ‘wrong’ dismissals as well as unfair dismissal. Wrongful dismissal is when a termination by your employer is in breach of the employee’s contract of employment, such as a dismissal without notice. Dismissal on the grounds of discrimination is automatically deemed as being unfair. Constructive dismissal is where the employee resigns or terminates their contract (without notice) due to some action on the part of the employer which would entitle the employee to terminate without giving a notice.
Dismissal may be unfair if your employer does not have a good enough reason for dismissing you, they did not follow the correct process when dismissing you or you were dismissed for an automatically unfair reason.
If the company you work for is being taken over by another company, you may be protected by ‘Transfer of Undertakings’ protections. This means that if you are protected by Transfer of Undertakings, and you are dismissed by either your old or new employer because of the transfer, or a reason connected with it, the dismissal will automatically be unfair and you will be able to make a claim. The only exception is if your employer can show the dismissal was for an economic, technical or organisational reason.
Redundancy is a form of dismissal, and can also be found to be unfair. You need to be in a position where you were either selected for redundancy for a justifiable reason, or you voluntarily applied for redundancy.
Retirement is a type of dismissal and therefore can also be seen as unfair. If your employer cannot show that the reason your retirement was fair then it is potentially classed as an unfair dismissal. Retirement can only be fair if your retirement date is on or after your 65th birthday, if 65 or over is your employer’s normal retirement age; your employer has given you proper notice of your retirement date if you are making a request to work longer than your retirement date your employer must have taken into account of this; you retire on the intended date. Your employer cannot fairly dismiss you for asking to work past the employer’s normal retirement age.