April 12

CIVIL LITIGATION NEWS: Have you been unfairly dismissed by your employer? Know your employment rights during COVID-19

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During these unprecedented times, many employers will be looking to explore ways to cut costs so that their businesses can stay open. Although the Government’s Coronavirus Job Retention Scheme has been extended until March 2021, many companies have already made the difficult decision of reducing their workforce, and in some cases, closing altogether.

Employers cannot dismiss employees without good reason. This is because even during a global pandemic, employers are bound to follow proper dismissal procedures set out in the Advisory, Conciliation and Arbitration Service (ACAS) and the Employment rights act 1996. You are entitled to compensation if your employer did not comply with the appropriate dismissal procedures.


I have been made redundant, and I disagree with the reasons for my dismissal, what do I do now?

According to the ACAS Code of Practice, employees must first lodge a grievance report if they disagree with the grounds of their termination. We would advise acting at the earliest possible opportunity. The time limit for presenting claims of unfair, automatic unfair or constructive dismissal to the Employment Tribunal is three months less one day from the date employment ended.


What is unfair dismissal?

Unfair dismissal means your employer dismissed you without a fair reason. Fair reason includes when the employee;

  • Fails to do their job to the required standard
  • Lied about their qualifications to get the job
  • Is made redundant, meaning the job is no longer needed
  • Has behaviour and disciplinary issues
  • Cannot do their job legally, for example, a lorry driver whos banned from driving, and other substantial reasons.

This means unless your employer dismissed you on one of the above grounds, you have been unfairly dismissed.

An unfair dismissal can also occur when the employer gave an acceptable reason but applied the wrong procedure or followed no procedure whatsoever.

If you are dismissed for self-isolating due to COVID-19 then this could amount to unfair dismissal under the Employment Rights Act 1996. This right applies to everyone regardless of their vulnerability status. So if you and everyone in your household are healthy, but you had to self-isolate for whatever reason then your employer, at most, can discipline you but they can not dismiss you.

An unfair dismissal claim can only be declared if you have worked for the company for at least 2 years. The exception is if you’ve been dismissed for an 'automatically unfair' reason, in such a scenario your length of employment is immaterial.

An automatically unfair reason includes dismissing you for;

  • Getting pregnant
  • Taking time off for antenatal or adoption appointments
  • Performing specific health and safety activities
  • Acting as an employee representative
  • Acting as a trade union representative
  • Acting as an occupational pension scheme trustee
  • Joining or not joining a trade union
  • Asking to be paid the National Minimum Wage
  • Requesting an annual leave 
  • Whistleblowing

In the alternative, if you worked at the company for less than 2 years, and your reason for dismissal is not automatically unfair, your option is limited to a claim for wrongful dismissal.


What is wrongful dismissal?

Wrongful dismissal arises when an employee is dismissed in breach of their employment contract or terms implied by statute. For example, an employer did not give a minimum period of notice for termination as specified in the contract. Damages for wrongful dismissal is not as rewarding as unfair dismissal.


How much compensation am I entitled to for unfair/ wrongful dismissal?

Each employment dispute is unique. The amount of compensation will depend on the terms of your employment contract, how long you’ve worked for your employer, and whether the law says the reason for your dismissal is fair.

Generally speaking, if there is a breach of the employment contract, the employee is entitled to damages. The amount will reflect the net value of your salary you would have received had you worked out your notice. For example, if you worked in retail for one summer and you were dismissed without warning, then statute suggests you are entitled to 2 weeks worth of wages. Also, if the employer has failed to follow the ACAS Code, the Employment Tribunal may increase any subsequent financial award it makes to the employee by up to 25%.


Can I be punished for refusing to return to an unsafe workplace?

According to the Employment Rights Act 1996 section 44, employers have the responsibility to provide a safe working environment. Therefore, employees have the right to take reasonable steps to protect themselves against what they believe could be a danger to their health and safety.

For example, if your employer fails to provide you with adequate PPE (where appropriate) during a global pandemic, then as an employee, you are allowed to stay at home. You should not be punished or fired for taking such measures.

However, you should not just stay at home without first telling your employer about your worries and concerns in the workplace. You should build employment relationships on understanding and professionalism—we advise bringing the problem to the attention of your employer first.


Bringing an employment complaint at OneLaw Chambers

At OneLaw Chambers, our solicitors and barristers can help provide you with bespoke solutions and help compose a strong argument against your employer for misconduct and unfair treatment in the workplace.

Book a consultation to speak with our expert London solicitors and barristers now by calling us on 0208 616 1819 or emailing us at aejaz@onelawchambers.com so we can assess your matter and advise you on the next steps. Due to the COVID-19 pandemic, we are unable to engage in face to face meetings, but we are happy to host a telephone or Skype consultation.


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