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I am a mum of two and have recently been dismissed from a job I started about a year ago whilst I was on dependants leave. I was in and put of hospital for several weeks as my son was quite poorly. Work have always been aware of his health issues since I started, but due to the recent time off they dismissed me. I feel that they did this unfairly. I followed procedures and called in every day with an update, so when they rang and told me they were terminating my contract with immediate effect I was shocked. I am now left without a job and have been on dependants leave so won’t have been paid anything whilst off either. I was initially on a six-month probation period which was extended but the extension was not confirmed in writing and was not entitled to sick pay for any periods of sick leave prior to my dismissal. I have asked for my HR file, but have not yet received it. What are my rights?
If you were dismissed on the spot, and your ex-employer did not follow any procedure leading up to the decision to dismiss you, such as inviting you to a meeting to discuss concerns or the reason you might be facing dismissal and giving you the opportunity to have your say before the decision is finally made, this can make a dismissal unfair and entitle you to compensation. Unfortunately, only employees with two years’ continuous service have the right to submit a standalone claim for ordinary unfair dismissal to the employment tribunal.
Because your start date was only approximately one year ago, the employment tribunal would not be able to accept a claim for ordinary unfair dismissal. However, there are still some rights which apply from day one of your employment which are worthwhile exploring to see whether something can be done.
If the reason for your dismissal was connected to you exercising your statutory right to take time off for dependants (sometimes called emergency leave) then the two-year qualifying period no longer applies and the employment tribunal can hear your claim. The unfair dismissal claim would look at whether your dismissal was caused by you exercising your statutory right, and did not simply coincide with it. If the tribunal found that the reason or principal reason you were dismissed was because you took emergency leave, then the tribunal can find it is automatically unfair, meaning they wouldn’t need to also look at any procedure before reaching their finding.
Unfair dismissal claims must be started within three months of the termination date. For example, if your employment ended on 11 November 2021, you would run out of time to start proceedings after 10 February 2022. The first step is to start ACAS Early Conciliation via the online notification form. There are short deadlines to lodge your claim at the employment tribunal once your Early Conciliation certificate is sent to you by ACAS. You should make sure that you check this at the time.
You mentioned that your six-month probation period was extended but the extension was not confirmed in writing. You also mentioned that you had sickness absence and should have received company sick pay because you had been working for over six months at that stage. Sometimes, company sick pay is not available to employees on probation, including those on extended probation. I would recommend carefully looking at your contract of employment to see whether the probation period removed eligibility for company sick pay. I would also recommend checking whether it is stated to be discretionary. If the answer to both those questions is ‘no’, then you may also have a claim for unlawful deductions from wages. The time limits are again quite short, and the claim needs to be started (with ACAS Early Conciliation) within three months of the deduction. I would recommend seeking specific legal advice about whether this claim is still in time. Make sure you have your contract of employment and your sickness absence dates to hand, together with your payslips for that period until your employment was terminated and your final payslip.
Finally, if your ex-employer has not responded to your requests for your personnel file, you can make a subject access request for your personal data held on your file. The Information Commissioners Office has helpful guidance and template letters which you might find useful to use.