Can I claim unfair dismissal?

"Since the end of last year, the firm I work for has been struggling financially, and now I've been told they have to let me go. However, last year I had several disagreements with my boss and I worry they are using 'redundancy' as a way to get rid of me.

"What are my rights? Do I have a case for unfair dismissal here?"

Trevor Bettany, a partner in the Employment Group at Speechly Bircham, says:

To successfully defend itself against your claim, your employer must show that the reason for your dismissal is potentially fair, and it must follow a fair procedure, which will vary according to the reason for dismissal.

Redundancy (defined as a reduced need for work of the type you are employed to do) is a potentially fair reason. However, if you're dismissed because of a personality clash, that is unfair.  

As part of the redundancy consultation process, you should press your employer to explain why you have been selected - who was in the selection pool, what criteria were applied and how did you score against those criteria?

You should also ask whether your boss made or influenced the decision.

It is important to appeal, otherwise any unfair dismissal compensation is reduced by up to 25%, under new rules introduced on 6 April 2009.

Moneywise says: 

Redundancy isn't a popularity contest and your employer can't make a decision base on names pulled out of hats. In fact, they are obliged to ensure that those selected for redundancy haven't been unfairly nominated.

Factors your employer might look at when considerng candidates for redundancy include your skills and role within the company. They might also look at:

•    Your attendance record
•    Your disciplinary record
•    Your skills or experience
•    Your standard of work performance
•    Your aptitude for work

If you think your attendance record has been affected by extenuating circumstances, such as illness, then you can add notes to explain this.

If you believe you are being made redundant as a cover up for other reasons or the redundancy procedure doesn’t seem correct, then you could claim unfair dismissal. You could also make a claim for wrongful dismissal if you feel your contract has been breached.

You need to make an unfair dismissal claim to an employment tribunal, or industrial tribunal in Northern Ireland. To make a claim, you generally need to have worked for your employers for at least one year.

After you have filed your claim, your employer must prove that it has investigated the situation adequately and followed the correct steps in statutory minimum dismissal procedure.

With wrongful dismissal you would have to take the matter to an Employment Tribunal. Unlike unfair dismissal, there is no minimum time period that you need to have worked for your current employer.

If you’re not a member of a trade union, then speak to an HR representative to see how to best go through the above procedures with your employer.

Contact the Advisory Conciliation and Arbitration Service for free, unbiased advice on all employment right issues – its helpline (08457 474747) is open from 8am to 6pm every weekday.

Residents in Northern Ireland should contact the Labour Relations Service on 028 9032 1442.

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