Nearly all of us will be an ‘employee’ at some stage during our life time, and many employees will devote an average of 1,820 hours a year working for our employers. However, do you really know what rights you have as employees?
If you are an employee, you have a significant amount of legal protection. If you have been employed by your employer for the requisite period of time, you have a statutory right not to be unfairly dismissed from your employment.
Do I qualify for protection from unfair dismissal?
The key questions to ask to determine if you have protection from unfair dismissal are:
Am I an employee?
To benefit from the statutory protection for unfair dismissal you must be an ‘employee’. If you are self-employed or a temporary worker you do not qualify as an employee for the purpose of unfair dismissal.
Whilst how your earnings are taxed is an indicator of whether you are an employee (if they are taxed through PAYE and you pay National Insurance this is normally an indicator that you are an employee), there are other key indicators including:
- Whether your employer is under an obligation to give you work and whether you are under an obligation to perform any work offered
- Whether your employer controls what you do, how and when you do it
- Whether you must perform your work personally or whether a replacement can carry out your work for you
- Whether you are paid sick pay and holiday pay and whether you receive any company benefits
- Whether you have been employed for the required period of time
The key date for any employee to consider is 6 April 2012. If you were employed on or after 6 April 2012 you have protection from unfair dismissal if you have worked for your employer for more than 2 continuous years. If you were employed before 6 April 2012, you received protection from unfair dismissal once you had worked for your employer for over 1 year.
Have I been dismissed?
To bring a claim for unfair dismissal you must have been ‘dismissed’. Any termination by your employer will be a ‘dismissal’. Your dismissal may have been with or without notice. Protection from unfair dismissal also covers protection from constructive dismissal. If your employer has fundamentally breached your contract of employment (which can include the way you have been treated) and you have no alternative other than to resign, this can also amount to a ‘dismissal’ for the purpose of unfair dismissal.
When will a dismissal be unfair?
The key question to ask to determine if you have been dismissed unfairly is whether the dismissal was for one of the five potentially fair reasons in law. If you have protection from unfair dismissal your employer can only dismiss you for one of the 5 following reasons:
- A genuine redundancy situation
- Some other substantial reason
Was the dismissal reasonable?
Your employer must also have acted reasonably in dismissing you for such a reason. The decision to dismiss must be within the range of ‘reasonable responses’ an employer could take in the circumstances.
Did my employer follow the correct procedure?
An employer cannot dismiss you without carrying out a fair procedure before effecting your dismissal. The procedure to be followed will depend on the reason for your dismissal, and the size of and resources available to your employer.
What if I think I have been unfairly dismissed?
Claims for unfair dismissal must be brought within 3 months of your dismissal, so it is imperative that you seek legal advice quickly.