Settlement Agreements and Automatic Unfair Dismissal.

You may be familiar with the concept of Unfair Dismissal however, as with many areas of law, it is not always as straight forward as you may have thought.

Usually to defend a claim for Unfair Dismissal by an employee, an employer must show that the reason for dismissal was a potentially fair one and that it has acted reasonably in treating that reason as sufficient to justify dismissing the employee. However there are some circumstances in which a dismissal will be deemed automatically unfair.

There are a number of important points to note in cases of automatically unfair dismissal:

 
  • The ‘reasonableness’ test does not apply. Dismissal for an inadmissible reason is always deemed to be unfair without any consideration of reasonableness; and

  • In ‘usual’ cases employees need to have two years of continuous service to have a claim but in most cases of automatically unfair dismissal, an employee does not need any qualifying service to bring a claim.

So when will a dismissal be automatically unfair?

There are many circumstances in which a dismissal will be automatically unfair. Below is a (non-exhaustive) list:

 
  • For reasons connected to pregnancy, childbirth, statutory maternity leave, statutory paternity leave, statutory adoption leave or parental leave;

  • For a health and safety reason;

  • For a reason connected with rights under the Working Time Regulations 1998;

  • For being an employee representative on a TUPE transfer or collective redundancy;

  • For making a protected disclosure;

  • For asserting a statutory right;

  • For a reason relating to an application for flexible working;

  • For a reason connected to carrying out jury service; and

  • For Trade Union membership or participation in trade union activities.

If you are given a Settlement Agreement, it is only valid if you take independent advice on its terms and their effect. As you are waiving your rights to bring a claim, it is important to fully understand what your potential rights are. As demonstrated by the list above, there may be many claims that you are entitled to bring which you had not considered. If you have been presented with a Settlement Agreement and require any advice on its terms, please do contact a member of our team.

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