COVID-19 – Unfair Dismissal: Your Rights

The government’s announcement that it will extend the Coronavirus Job Retention Scheme until 31 October 2020 might provide some further cushioning, but many businesses are still finding it hard to fight the economic impact of being unable to ‘open for business’, while others are tackling the unprecedented task of finding a way to safely open their doors to staff and customers in this changing landscape. We are starting to see the effects of the virus on all industries and on people in all walks of life.

For many employers, these difficulties are too great to overcome and they are left with the unenviable task of reducing their workforce and, in some cases, closing altogether.  

This article seeks to assist employees whose livelihoods are at risk, who are being asked to return to an unsafe workplace, who have been dismissed, or have simply been asked not to return at all. However, it is of equal benefit to employers who want to better understand the rights of their staff.

While we give some pointers and a general overview, this article is not intended as legal advice. Employers or employees/workers requiring advice about their particular circumstances should contact us at info@mcolaw.com or 020 3048 5959.

I have been dismissed and I don’t agree with the decision – What action can I take?

It is expected under the ACAS Code of Practice that employees first lodge a grievance and/or appeal if they disagree with their termination. But, you need to act quickly. The time limit for presenting claims of unfair, automatic unfair or constructive dismissal to the employment tribunal is 3 months less one day from the date employment ended or the event giving rise to the claim. Internal grievance and appeal procedures can take time, so it is best not to delay putting them in motion.

That said, do not make a rushed decision – the same can be said here for both employees and employers. We encourage you to take advice because every case is different and every decision is important; an ill-considered action can bear wider economic and legal consequences. It is key that you identify what legal protections might apply to you. For some initial guidance, here are four different kinds of dismissal that the law recognizes.

What is Unfair Dismissal?

Simply put, a dismissal is unfair when the employer terminates the employment contract without a fair reason. Fair reasons include when the employee:  

• isn’t able to do the job to the required standard
• has persistent or long-term illness
• has been made redundant, that is, the employer doesn’t need that job done anymore
• has disciplinary or conduct issues or
• when employing you would mean breaking the law; or for some other substantial reason.

An unfair dismissal can also occur when the employer did have a fair reason but applied the wrong procedure or followed no procedure whatsoever.

A claim for unfair dismissal can only be brought once an employee has at least 2 years of continuous service with their employer.

What is Automatic Unfair Dismissal?

Certain reasons for dismissal the law defines as ‘automatically unfair’. These include firing the employee because he or she refuses to work in an unsafe environment, or has blown the whistle on unsafe or illegal practices by the employer. News reports indicate these kinds of dismissals are increasing because of COVID-19.

What is Constructive Dismissal?

An employee who is forced to resign their job because of the employer’s extreme or unfair conduct has been constructively dismissed. The reason for leaving the job has to be serious and you must have 2 years continuous service, as with unfair dismissal.

A COVID-related example might include being forced to quit because the employer refuses to provide a safe working environment. The Health Protection (Coronavirus) Regulations 2020, at Regulation 3(1) state that: “the incidence or transmission of Coronavirus constitutes a serious and imminent threat to public health.” An employee who feels forced to resign because the employer’s working practices pose a genuine risk to his or her health, and by extension to the health of the public, might have grounds for constructive dismissal.

However, you need to act quickly in response to the breach by your employer and take advice as delay may be seen as acceptance.

What is Wrongful Dismissal?

Wrongful dismissal arises where an employee is dismissed in breach of their contract of employment. One example is when an employer has failed to give the notice period for dismissal specified by the contract.

It often presents an alternative for those who have been constructively dismissed but do not have 2 years continuous service, because the employer may not breach the contract at any time.  It might be argued, as a further example, that a failure to provide an employee with a safe place of work with adequate protective measures and PPE is a breach of the implied term of trust and confidence between the employee and employer. If an employee resigned as a result, it could be argued that the employer’s failures amount to a breach of the contract of employment, so the resignation therefore amounts to both a wrongful dismissal (breach of contract) and a constructive dismissal (employee had no choice but to resign under the harsh circumstances caused by the employer).

 By James Green, Senior Associate

The current pandemic has and will continue to impact employees and apply economic pressure on business to shrink their staff. For more information on the employment law implications of COVID-19, visit our Employment Law Briefing, which details key information and resources.

Employees/workers or employers requiring advice about their particular circumstances should contact us at info@mcolaw.com or 020 3048 5959.