Working rights - common misconceptions

• I cannot be dismissed for sickness if I have a doctor's note and I am getting statutory sick pay.

False. If you have been employed for less than a year, you can be dismissed for this reason. If you have been employed for more than a year then incapacity, i.e. inability to do a job because you are sick, can still be a fair reason for dismissal. The employer needs to consult you and get a medical report to find out the medical position. Each situation is different but the employer should consider the likely date of return and the need for you to carry out the work, and a dismissal may be considered reasonable in all the circumstances of a case. The fact that statutory sick pay has run out does not necessarily mean a dismissal is fair. It is just one factor that is considered. Of course, your employer must follow the statutory dismissal procedure.

• I have been dismissed for dishonesty which I did not commit. Claiming unfair dismissal in an Employment Tribunal will clear my name.

False. The Employment Tribunal does not consider whether or not the employee committed the misconduct alleged by the employer. Instead they consider whether the employer had a real belief that the employee had committed misconduct, whether there were reasonable grounds for that belief, and whether the employer has conducted a reasonable investigation and given the employee the chance to have their say. The Tribunal will also consider whether it was reasonable in all the circumstances to dismiss for that offence. Of course, your employer must have followed at least the modified statutory procedure for gross misconduct.

• If I had an accident at work, which was my employer's fault, my employer cannot dismiss me for being off work sick.

False. If you have been employed for less than a year, you can be dismissed for this reason. If you have been employed for more than a year then incapacity, i.e. inability to do a job because you are sick, can still be a fair reason for dismissal. The employer needs to consult you and get a medical report to find out the medical position. Each situation is different but the employer should consider the likely date of return and the need for you to carry out the work, and a dismissal may be considered reasonable in all the circumstances of a case. The fact that your employer has caused your ill health is just one factor to consider. Of course your employer must follow the statutory dismissal procedure. However, you may have a personal injury claim against your employer and should seek legal advice.

• If I am the last one in, I'll be the first one out in a redundancy.

False. In a redundancy situation, for a dismissal of someone over one year's service to be fair, the employer must have consulted the affected employees, have an agreed selection criteria, which can include factors such as attendance, length of service and ability to do the job, apply the agreed selection criteria and consider suitable alternative employment. They must also follow the statutory dismissal procedure.

• It's OK for my employer to dismiss me when my fixed term contract expires.

False. An expiry of a fixed term contract is a dismissal, and is subject to the same test as any other dismissal. Your employer must be able to show a fair reason (misconduct, incapacity, redundancy, statutory restriction, some other substantial reason) and the Tribunal must consider the dismissal reasonable in all the circumstances. Your employer must also follow the statutory dismissal procedure.

• I can't rock the boat in my first twelve months with a company as they can just dismiss me.

False. There are certain reasons for dismissal which are automatically unfair even if the dismissal is on the first day of employment. These include dismissal for:

• Being pregnant/ giving birth
• Taking maternity leave, parental leave or in certain circumstances leave to deal with an emergency relating to a dependant you care for.
• Making a reasonable complaint about health and safety or refuse to work in a dangerous situation
• Insisting on your right to holiday, or not to work more than an average of 48 hours a week
• Whistleblowing about a criminal offence, breach of a legal obligation, miscarriage of justice, danger to a person or the environment
• Complaining when your employer won't give you written confirmation of your terms and conditions
• Complaining when your employer won't give you payslips
• Complaining when your employer has made deductions from your wages
• Complaining when your employer does not pay you the minimum wage

• If I claim unfair dismissal in the Employment Tribunal I can expect thousands of pounds of compensation for the way I have been treated, like you read about in the papers.

False. Not necessarily. If you are successful in a claim for unfair dismissal you receive two awards. The first is known as the basic award, it is equivalent to statutory redundancy pay and depends on your age, length of service and gross weekly pay. Weekly pay is subject to a cap, currently £270. The second is known as the compensatory award and compensates you for any lost earnings and a small amount, about £300 for the loss of rights accrued after one year's service. If you have not lost any earnings because you have got a new job immediately then your compensatory award may just be about £300. It is not possible to get compensation for mistreatment itself and the way it has made you feel.

• The Tribunal will expect me to want my job back if I bring a claim.

False. You have a choice when bringing a claim to ask for compensation only, or to have your own job back, or a different job back. In fact it is rare that employees get their jobs back as a result of claiming unfair dismissal and there is nothing wrong in limiting your claim to compensation only.

November 2006