New Job Role and Unintended Consequences
In law, an employee can claim a dismissal has occurred if an employer terminates the particular contract under which the employee is working. So long as the termination is by the employer alone, and is not by mutual agreement, the dismissal may be unfair if a proper procedure has not been followed.
This type of dismissal (which is not the same as constructive dismissal) can occur if an employer decides to restructure the business and moves the employee from one job to another and the employer does not agree to the move.
Often there is much made of the terms and conditions of the new job. Often this leads to the employee being distracted with points of detail about the new job. It is only when questions are asked about why the old job is being terminated that the actual legal position becomes clear.
In such a case, the employee is often dismissed (because the old contract is brought to an end by the employer) even if the employee never actually leaves employment! For instance, the old contract may continue up to a Friday, then stop, and a new contract starts on the Monday. In such a case there may be a dismissal.
The time limit to claim runs out within 3 months of the dismissal, which means within 3 months of the old contract ending. In many cases, even the employer does not realise a dismissal has happened. It may be necessary to make an appeal in quite a short timescale, often within 7 days or lesser period.
It is important to obtain advice quickly, even if the employer has never mentioned the words ‘dismissal’ or ‘termination’.
Dismissal is a unilateral action and once a person has been dismissed, or had their original employment contract terminated, an employer is generally not able to change its mind and overturn the dismissal. However, if the employee appeals the dismissal, an employer can overturn the decision and the employment relationship is resumed.
Dismissal takes effect when you find out. If an employer sends notification by post and the letter is delayed, the dismissal is not effective until the letter is received by the employee.
What happens of the employer dismisses by mistake? What if it is Bill, not Fred, who is told his contract is to end? If the words are clear, the dismissal is effective and the employer cannot, generally speaking, set it aside. In such a case, if the wrong person has been finished the chances are the dismissal will be unfair. If so, and the person claiming has been employed long enough, there is a right to claim.