Your rights around unfair dismissal

What are your rights around unfair dismissal? Workingmums.co.uk outlines what your employer can and can’t do.

Woman holds box in an office with a hand to her head indicating redundancy

Labour has promised a day one right to protection from unfair dismissal [outside of a probation period]. But what’s the current situation? 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

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 currently a way an employer can force a new contract on employees, but it carries the risk of legal action for unfair dismissal or a breach of contract.

Currently, 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.

Earlier this year the previous government published statutory guidance which said ‘fire and rehire’ should only be used to change employees’ terms and conditions as “a last resort” and urged employers to first engage in thorough and open information and consultation processes. Labour says it will introduce a more robust code of practice and a clearer statutory code with the aim of protecting employees from agreeing to disadvantageous terms.