Since 2012, employees had to be employed for at least 2 years (the qualifying service period) to be able to claim unfair dismissal under the Employment Rights Act (ERA). This does not mean that an employee with less than 2 years’ service has no potential claims. There is no requirement for qualifying service in certain circumstances. For example, dismissals due to pregnancy or whistleblowing, or to bring a discrimination claim under the Equality Act 2010. However, in these cases, the burden of proof is on the Claimant to show they have been “wronged” whereas for employees with 2 years’ service the burden of proof is on the employer to show the dismissal was fair.
There are five potentially fair reasons for dismissal under the ERA: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction and “some other substantial reason” (SOSR). As well as relying on one of the potential fair reasons, your employer must also satisfy a Tribunal that they acted reasonably in treating that reason as sufficient to justify dismissing you as the employee.
In every case, having established a potentially fair reason, a Tribunal will need to decide if the dismissal was reasonable. This essentially involves two considerations
Only if it was beyond what a reasonable employer would have done can a Tribunal conclude that a dismissal was unfair.
Every case is different and whilst every Tribunal should apply the law on dismissals in the same way, it is necessary to look at each case based on its own facts. At Martin Searle Solicitors we are experts in dealing with unfair dismissals and we will be able to advise you whether you have a claim worth pursuing to Tribunal.
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