Basic guide to qualifying to claim unfair dismissal

Posted by on March 21, 2016 in Law, Unfair Dismissal | Comments Off on Basic guide to qualifying to claim unfair dismissal

Basic guide to qualifying to claim unfair dismissal

Dismissals can occur in a variety of situations, examples of which are: termination of the contract by the employer, contract of the employee ends and this isn’t renewed by the employer or termination of the contract by the employee under circumstances where the employer’s actions have entitled the employee to take such action.

A dismissal is viewed as either fair or unfair. The difference is normally depending on the reason for the dismissal and if the parties have acted reasonably throughout the dismissal procedures. The definition of acting reasonably in relation to the action of the parties throughout the dismissal procedures can be found in past legal decisions of the Employment Tribunal. If it is proved that a dismissal was claimed under false claims, serious consequences can follow afterwards.

unfair-dismissal-ireland1An employee can also be constructively dismissed. An employee is constructively dismissed when an employee leaves his job due to the employer severely breaching their obligations to the employee laid out by the employee’s employment contract. An example of such actions could include:

-Forcing the employee to work in dangerous situations;

-Reducing the employees’ wages without prior consent;

-Demoting the employee without proper reason;

-Forcing the employee to work in a different location without their consent at short notice;

-Allowing work colleagues of the employee to subject them to bullying, discrimination or any other types of harassment;

Constructive dismissal can occur from a pattern of such behaviour or simply one isolated incident of significant magnitude. If this is the case, the employee may be able to claim constructive unfair dismissal before an Employment Tribunal. They are not necessarily intertwined however employers generally find it difficult to show that a breach of an employees’ Employment Contract is fair.

Employment Contracts between employees and employers have implied terms as well as the written terms. An example of an implied term is that there is a duty between employees and employers to maintain trust and confidence between the parties.

Wrongful-Dismissal-Toronto-Employment-Lawyer-1The definition of wrongful dismissal is that a term of the contract has been broken in the procedure used for dismissal. This could be something as simple as the notice to the employee not being present sufficiently. For an employee to be able to take a case to the Employment Tribunal they must have worked for the employer for at least one year. There are some dismissals, however, that does not require a minimum term of employment and are automatically unfair.

Examples of individuals who do not have a right to claim unfair dismissal at the Employment Tribunal are:

-Contractors who are working independently;

-Individuals who are self-employed;

-Individuals in the armed forces;

-Any employee who has reached a settlement with the employer, with the help of ACAS.

-Individuals who were not lawfully employed in the first place;

-Any individuals who are under a dismissal procedure agreement in which it states that there is an exemption from unfair dismissal provisions under the legislation;

-Employees who partake in industrial action that is not sanction by a recognized union;

-Anyone employed by the Police;

-Masters of a fishing crew;

-Any employee who has signed a Compromise Agreement with the employer.

Unfair-DismissalThere is no qualifying period for wrongful dismissal. It is possible for the parties to a dismissal-procedures agreement can apply to Secretary of State in which it may be possible to substitute some aspects of the legislation. Substitutions would be allowed if the following has taken place: trade unions which are parties to the agreement are completely independent of one another; there is a step by step policy to be followed when an employee claims to have been unfairly dismissed; there are no restrictions in place as to which employees can benefit from the procedure; there is no discrepancy as to the level of protection offered from the legislation and the alternative; there is a clause inserted which allows for arbitration in the extreme cases to which they are necessary; there are clearly defined terms in the agreement to which it outlines which employees are included and which are not