Are you eligible to claim unfair dismissal
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24 February 2009
By Corinne Day
In order to pursue a claim for unfair
dismissal, a person must:
- Be an employee
- Have been dismissed
- Have been continuously employed for the
requisite period
To
take each of the above in turn, an 'employee' is defined as an
individual who works under an employment contract (s 230 (1) Employment
Rights Act 1996). Therefore, the self-employed, workers and independent
contractors are excluded from entitlement.
There
must also be dismissal- i.e. the employment must be terminated by the
employer. An employee is treated as dismissed if 'the contract under
which he is employed is terminated by the employer' (whether with or
without notice) (s 95(1)(a) and 136 (1) (a) Employment Rights Act
1996). Interestingly, this includes the situation where an employer
does not renew a fixed term contract on the same terms as the previous
employment (s 95(1) (b) and s136(1)(b) Employment Rights Act 1996). It
also covers the situation where the employee resigns by reason of the
employer's conduct. In this situation, the employee is said to have
been constructively dismissed.
The employer must
also have been working for the employer continuously for 12 calendar
months. This means working for the employer without a break. However,
in some circumstances, employment can be regarded as continuous in
spite of short breaks.
Only if all of the above are fulfilled can
an employee consider pursuing a claim for unfair dismissal against
their employer.
Corinne
Day is a trainee solicitor who specialises in information technology
law and intellectual property law. She can be contacted via e-mail on
corinne.day@lawdit.co.uk
About the Author
Lawdit Solicitors
offer services and advice for litigation, commercial contracts, Intellectual
Property and IT legal agreements. We are experts in commercial law with
a heavy emphasis on Intellectual Property, Internet and e-commerce law.
Lawdit is a member of the International Trademark Association, the
Solicitors' Association of Higher Court Advocates and we are the
appointed Solicitors to the largest webdesign association in the world,
the United Kingdom Website Designers Association.
