workingmums.co.uk’s guide to unfair dismissal

workingmums.co.uk looks at your legal rights when it comes to unfair and constructive dismissal.

Gavel with employment written on it, representing employment law

 

If you are dismissed by your employer, you must be given at least the notice stated in your contract or the statutory minimum notice period, whichever is longer, or they could otherwise face a legal claim.

When you are dismissed, your employer must not have chosen you for a discriminatory reason and if you have been employed for more than two years there must be a justified reason and reasonable grounds and procedures followed or you could sue for unfair dismissal. If not, you may have to rely on breach of contract ie breaking the terms of your contract such as due notice or on constructive dismissal which occurs when an employee resigns as a result of the employer creating a hostile work environment.

Unfair dismissal

Your dismissal could be unfair if your employer does not:

  • have a good reason for dismissing you
  • follow the company’s formal disciplinary or dismissal process

The Government has outlined situations when your dismissal is likely to be unfair. They include:

  • if you have asked for flexible working
  • if you have refused to give up your working time rights – for example, to take rest breaks
  • if you resigned and gave the correct notice period
  • if you joined a trade union
  • if you took part in legal industrial action that lasted 12 weeks or less
  • if you needed time off for jury service
  • if you applied for maternity, paternity and adoption leave
  • if you were on any maternity, paternity and adoption leave you’re entitled to
  • if you are a whistleblower

Constructive dismissal

Constructive dismissal is when you are forced to leave your job against your will because of your employer’s conduct, such as because they have demoted you for no reason, allowed you to be bullied or forced you into unreasonable changes, for instance, working night shifts when you are contracted to work days.

If you have a good case and have exhausted internal remedies, you should leave your job immediately to show that you do not accept the way you have been treated.

Fire and rehire

In order to amend an employee’s employment contract an employer needs consent. To amend the contract to the disadvantage of the employee without consent is a unilateral variation which could result in a claim for unfair dismissal or a breach of contract. Some employers try to circumvent these basic requirements through ‘fire and rehire’ tactics.

Individuals at the greatest risk of the firing and rehiring approach are those with short notice periods – for example, the statutory minimum of one week – and those with less than two years employment who do not have the right to claim unfair dismissal.

There are limited circumstances under which an employment contract can be unilaterally changed. ACAS guidance provides that it may be possible in the following scenarios:

  • Where there is a flexibility clause – allowing employers the right to make reasonable changes;
  • Where the employee agrees to the change after a period of consultation free from duress; or
  • Where employee representatives – for example, a trade union – agree to the change on their behalf.

If an employer wants to propose changes to your employment contract, this would usually be achieved through consultation with the employer explaining the business reasons for doing so and aiming to get consent. If an agreement over contractual changes cannot be reached, firing and rehiring is a way an employer can force a new contract on employees, but it carries the risk of legal action.



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