11 Aug 2016

What are your legal rights if your boss wants you out?

What are your legal rights if your boss wants you out?

If you feel you have been forced out of your job, you could have grounds to make a legal claim against your employer. Here's how...

New Manchester United manager Jose Mourhino is in the news again after being accused of embarrassing Juan Mata during last weekend's Community Shield.

Mourinho replaced second half substitute Mata just 30 minutes after bringing him on – a decision which was branded out of order by BBC pundit Danny Murphy.

The Spaniard, never popular with Mourinho when the pair were together at Chelsea, finds his future once again in doubt.

Clearly, Mourinho is exercising the rights he has as the man at the Old Trafford helm and by law has done nothing wrong.

However, the case does highlight that disputes between employers and employees can happen.

And there are certain situations, you may be able to take legal action if you’re dismissed.

Unfair dismissal

Your dismissal could be unfair if your employer doesn’t:

  • Identify a fair reason for dismissing you. Legally there are 5 potentially fair reasons for dismissal – conduct, capability (poor performance / ill health), redundancy, a legal restriction preventing ongoing employment or ‘some other substantial reason’; or
  • Follow a fair process prior to your dismissal such as a disciplinary, sickness absence or redundancy procedure.

In that case you could claim unfair dismissal at the employment tribunal – however generally you have to have 2 years complete service to make such a claim.  

There are some situations in which your dismissal may be ‘automatically unfair’, in which case you could claim unfair dismissal regardless of your length of service.   

Automatically unfair reasons for dismissal include:

  • you asked for flexible working;
  • you refused to give up your working time rights - eg to take rest breaks;
  • you resigned and gave the correct notice period;
  • you joined a trade union;
  • you took part in legal industrial action that lasted 12 weeks or less;
  • you needed time off for jury service;
  • you applied for maternity, paternity and adoption leave;
  • you were on any maternity, paternity and adoption leave you’re entitled to;
  • you tried to enforce your right to receive Working Tax Credits; or
  • you exposed wrongdoing in the workplace (whistleblowing).

Constructive dismissal

Constructive dismissal is when your employer breaches your contract of employment (which can include a breach of trust and confidence) and you resign in response to that breach.  You are then entitled to treat yourself as having been dismissed by your employer due to their conduct.

The reasons you resign must be serious, for example, they:

  • don’t pay you or suddenly demote you for no reason;
  • force you to accept unreasonable changes to how you work - eg tell you to work night shifts when your contract is only for day work; or
  • let other employees harass or bully you.

Your employer’s breach of contract may be one serious incident or a series of incidents that are serious when taken together.

If you do have a case for constructive dismissal, you should resign immediately - your employer may argue that, by staying, you accepted the conduct or treatment.

Taking action

If you think that you may have been unfairly or constructively dismissed you should get advice from a solicitor.  Alternatively ACAS or the citizens advice bureau may be able to assist.

If you have enough service to make a claim then you must start the claim by making an application to ACAS who will contact both parties to try to reach a settlement if possible, avoiding the need to go to the employment tribunal (early conciliation). 

If conciliation is unsuccessful then you can proceed with an employment tribunal claim.

Employment law specialists

Aberdein Considine partner Sally-Anne Anderson is a specialist in all aspects of Employment Law.

If you wish to speak to her about your circumstances, call 0333 0044 333 or click here.

 

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