Protect yourself from unfair dismissal

"you are fired" sticky

Q: "I recently sent an email criticising a client to the client by accident. I owned up but was fired two days later. While I appreciate what I did was wrong, is my boss legally allowed to fire me without warning? Also, what are my legal rights regarding the bonus I was due to be paid this month but which I won't now receive?"

Gillie Scoular is a partner in the employment team at national law firm Mills & Reeve

A: You may be able to claim damages if you were dismissed without proper notice or in breach of a relevant contractual dismissal procedure. If you have at least one year's service, you may also be able to claim for unfair dismissal.

A fair dismissal requires that your employer has a potentially fair reason for dismissing you (such as misconduct or poor performance) and has followed a fair procedure.

An employer can generally only dismiss without notice, or for a first offence, where there is gross misconduct.

A possible claim for your bonus will depend on a number of factors, including whether it was contractual or discretionary; whether it depended on you still being employed at the date of payment; and whether your dismissal was unlawful and your employer's real reason was to avoid paying the bonus.

Depending on these factors, and the amount of your anticipated bonus, you may need to take your bonus claim to a county court or the High Court rather than an employment tribunal.

What can you do if you think you've been dismissed unfairly?

Q: What is unfair dismissal?

A: A dismissal can be unfair if your employer dismisses you despite the fact you've done nothing incorrect in your job, nor performed badly in your role.

A dismissal can also be deemed unfair if your employer doesn't follow the correct protocol when dismissing you – for example, it hasn't followed company procedures.

Some reasons for dismissal are classed as automatically unfair because the decision goes against statutory rights. Examples of this would be any dismissal based on gender, age or maternity leave rights.

Q: How can I appeal against automatic unfair dismissal?

A: Make a claim to the employment tribunal for unfair dismissal. Go to employmenttribunals.gov.uk or call the public enquiry line on 0845 795 9775 for more help. You can download claim forms from the website.

The claim should be made within three months. This period begins from the date your employment ended. In most cases you will have needed to have worked for your employer for at least a year.

Q: What are my statutory rights?

A: Your statutory rights at work include having a minimum notice period, a pay slip, and written details of employment particulars, all of which should be in your contract.

You are also entitled to time off for dependants, antenatal care, public duties like jury service and to request maternity, paternity or adoption leave and parental leave.

It's your right to request flexible working arrangements and you shouldn't be discriminated against because of your gender, race, disability, religion, sexual orientation or age.

Q: In what circumstances would my dismissal be deemed fair?

A: Anything that means you are unable to perform your job to a satisfactory level is grounds for dismissal. Examples include if you have continually missed work; have a poor discipline record; a drug or alcohol problem or have been dishonest.

Q: Can my employer fire me for missing work because of a long–term illness?

A: Your employer should look at any alternative options before dismissing you; however, if on closer inspection your employer decides the job is hindering your health then it's within its rights to discharge you.

Before it can dismiss you though, it needs to allow a reasonable amount of time for you to recover. How long this is depends on the likelihood of your recovery, whether your job can be kept open and how easy it is to get cover for your job.

Published: 24 May 2010
Last updated: 08 November 2010

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