Knowing your rights at work

Knowing your rights at work is important. You may have a legal claim if your rights have been breached when being dismissed by an employer. The rights you have depend on your status and your contract. Knowing your rights can help. You’ll understand if you can bring a claim for unfair dismissal in the employment tribunal when your employer or the business you are working with brings your contract to an end.

There are three main types of employment status:

  • employee
  • worker
  • self-employed

Your contract will usually tell you what your status is. But, if the wording in your contract does not reflect what you actually do in practice, you may have worker or even employee status, despite what your contract says.

You can check your employment status on GOV.UK.

Self-employed people don't have employment rights as such. Workers have some employment rights. But they cannot bring a claim for unfair dismissal. If you are self-employed or a worker and the business you are working for wants to end the contract it has with you, they will need to give you notice. The length of the notice and the steps they need to follow should be set out in your contract. 

Employees usually need to be employed for two years before they can make a claim for unfair dismissal to the Employment Tribunal.

Have I been unfairly dismissed?

If you are an employee and you have been employed for two years or more, your employer can dismiss you if they have a fair reason. They must follow a fair process. If your employer does not have a fair reason, or they do not follow a fair process you may be able to bring a claim for unfair dismissal against them.

There is more information on the potentially fair reasons for dismissal and the processes your employer should follow on GOV.UK and ACAS.org.uk.

Your employer should always give you a clear reason why you are being dismissed. You should be given the chance to make your case and appeal as part of any process leading to dismissal. Your dismissal will be “automatically unfair” if you were dismissed for:

  • making a flexible working request
  • being pregnant or being on maternity leave
  • asking for your legal rights at work (breaks, minimum wage)
  • raising a health and safety issue
  • taking part in trade union activities
  • whistleblowing.

You do not need to be working for more than two years to make a claim if you were dismissed for one of these reasons.

You could also have a discrimination claim if think you have been dismissed because:

  • you are pregnant or on maternity leave
  • of your race (which includes your nationality, ethnicity or national origin)
  • you are married or in a civil partnership
  • of your sex
  • of gender reassignment
  • you have a disability
  • of your sexual orientation
  • of your religion or belief
  • you are older or younger than the people you work with.

- There's obviously the term constructive dismissal and then an unfair dismissal. How do they sort of work together? Are they totally separate things? 
- The difference is that an unfair dismissal is when somebody's actually dismissed by their employer. 
- Okay. 
- So that's the type of claim that you would bring. If we were working together and I dismissed you. 
- Yeah. 
- You would bring an unfair dismissal if you thought it was unfair.
- Okay. 
- If we were working together and I made your life so miserable that you felt you had no option but to leave. 
- Yes. 
- Or I did a series of things that made it impossible for you to work there anymore and you left, that would be a constructive dismissal. 
- Oh, okay. 
- So that's the difference.
- Yeah. 
- And there's also a difference in burdens of proof on that as well. So if I actually dismiss you, and it's an unfair dismissal claim, me as the employer, would have to prove that I had actually acted fairly in dismissing you. So everything's on me.
- Oh, okay. Yes. 
- Whereas if you leave and you resign, the burden is on you to prove that I, as your employer, acted so unreasonably. 
- Yeah. 
- There was no option but for you to leave. And you've got to show what they call a fundamental breach of contract. 
- Oh, okay. Right. 
- So sometimes it's things like not paying somebody, and it's really obvious.
- Yeah. 
- But one of the most common things for constructive dismissal is a breach of the term, which is implied into every contract of mutual trust and confidence. 
- Okay. 
- And that might be bullying somebody to the point where they just can't take anymore, for example.
 

What is constructive dismissal?

This is when you resign because of a breach of contract with your employer. Breaches could arise from changes your employer makes to your:

  • pay (or not being paid)
  • hours of work
  • work location.

Demotion or some other action (such as serious bullying or discrimination) which results in loss of faith between you and your employer may also be a breach of your contract.

Continuing to work after your contract has been breached can make it seem like you accept what is happening to you. If this happens, you may not be able to bring a claim for constructive dismissal.

Therefore, you should resign quickly for the best chance of a successful claim. But, in these situations, you should always seek legal advice as early as possible. You should do this before writing your resignation letter. Constructive unfair dismissal claims are hard to win. Once you have resigned, you may not be able to get your job back or bring a successful claim. You should seek advice on whether you have a claim for constructive dismissal before resigning.

What do I do next?

You normally only have three months less one day to start the process of making a claim for unfair dismissal. 

The first step you must take is to contact ACAS for early conciliation. ACAS will try and reach a resolution with your former employer on your behalf. If no resolution can be reached, and you want to bring a claim, you can do so by completing an online form on GOV.UK. 

So, it is important that you act quickly. You should seek legal advice as soon as you can if you believe you're being unfairly or constructively dismissed.

You can get advice from

You can appeal your dismissal with your employer if they have an appeals process. You should do this straight away. Not appealing could affect any claim you might bring or the amount of compensation you could be awarded if you win. It is important not to let the appeal process delay bringing a claim. The three-month time limit must be met even if your employer has not given you the outcome of your appeal in time.’

Tips for employees

  • check your contract and understand what you are entitled to
  • keep a diary of dates and events, if you feel you are being treated unfairly
  • raise your concerns straight away.
  • be proactive in addressing issues and seeking advice
  • keep any documents given to you by your employer
  • get the contact details for any witnesses and check they are happy to support you

Tips for employers

  • Have clear policies that are maintained and easy to find.
  • Follow the correct procedure depending on the type of dismissal.
  • Give employees clear information about their rights.
  • Make sure all investigations are fair.
  • Consider underlying health/disability issues in all cases.
  • Give employees warnings and opportunities to improve, leaving dismissal as a last resort.
  • Take a consistent and fair approach with all employees.

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