Unfair dismissal and constructive unfair dismissal: Have you been dismissed or felt that you were forced out constructive dismissal) of your employment within the last three months? If so you may be able to make a claim against your ex-employer. There are only 5 potentially fair reasons for dismissal and the onus is on your employer to show that;
A. They have dismissed you for one of the five potentially fair reasons and
B. That they have followed a fair and reasonable procedure.
The 5 potentially fair reasons:
5. Some other Substantial Reason (SOSR) – a reason not listed above, but that is of importance to your employer.
(click on any of the reason above for more information)
A Fair and Reasonable Process.
The minimum process that your employer must follow is set out by Acas in their code of practice. If your employer does not follow the code there is a good chance that your dismissal will be procedurally unfair. However the starting point has to be the investigation. The need for a thorough investigation and a fair process is set out in the Employment Appeal Tribunal case of Burchell v British Home Stores and although this case is from 1980 it is still good law today.
As a short summary, your employer must carry out a fair investigation, invite you to a disciplinary hearing in writing, hear your side of the story and then make up his mind about the sanction. If you are to be dismissed you should be paid notice and any accrued but untaken holiday entitlement. The exception to this is if you are dismissed for gross misconduct in which case you will not be entitled to any notice or pay in lieu of notice, you will still be entitled to any accrued holiday pay.
So many employers get it wrong. The slightest error in the procedure can affect the fairness of your dismissal. Contact us for more information on: 0115 856 1625.