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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.



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Article Published/Sorted/Amended on Scopulus 2009-03-08 14:59:00 in Legal Articles

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