A dismissal is not always unlawful — on the contrary, it may well be lawful and justified. Equally, an employer cannot terminate an employment relationship at any time and for any reason it chooses.

The Termination of Employment Law sets out exhaustively the circumstances in which termination is lawful. If the employer cannot establish that the dismissal was based on one of the grounds the law provides, the employee may be entitled to compensation.

When can a dismissal be unlawful?

Every case turns on its own facts. In practice, many claims concern situations such as the following:

  • the employer relies on poor performance without prior documentation, or without any genuine opportunity to improve having been given;
  • the termination is presented as redundancy where the statutory conditions are not met;
  • the real reason relates to pregnancy, maternity, or the taking of parental or paternity leave;
  • the employee is dismissed for having made a complaint or report to a competent authority;
  • the dismissal relates to trade union activity or to another reason the law expressly prohibits.

The law also provides an important presumption. Before the Industrial Disputes Tribunal, the termination is presumed not to have been for a lawful reason, and the burden lies on the employer to prove otherwise.

When are you entitled to compensation?

As a general rule, an employee who has completed at least 26 weeks of continuous employment with the same employer may claim compensation, provided the termination was not based on a lawful ground.

How much can the Tribunal award?

Compensation is not calculated solely by reference to years of service.

The law provides an upper limit, which may reach the equivalent of two years’ earnings. In fixing the amount, the Tribunal takes into account, among other things, the employee’s earnings, the length of service, the loss of career prospects, the employee’s age, and the actual circumstances of the termination.

Nor is compensation always paid entirely by the employer. Up to the equivalent of one year’s earnings is paid by the employer, while the Redundancy Fund contributes towards any amount exceeding that, in accordance with the law.

Time matters

The claim is subject to a specific deadline provided for in the relevant legislation, running from the termination of employment.

In practice, a good number of claims are lost not because the employee had no case but because advice was sought too late. Making a complaint to the employer, or asking the employer to reconsider, does not suspend the deadline.

What you should do

If you believe your dismissal was unlawful:

  • record the exact date on which the employment terminated;
  • request and keep the letter of termination;
  • preserve all relevant messages, warnings and documents relating to your employment;
  • request your certificate of employment, which may not contain anything adverse to you;
  • obtain specialist legal advice early, so that the facts and the options available can be assessed.

Conclusion

Whether a dismissal is lawful depends not only on the reason the employer puts forward, but on whether that reason can be proved in the manner the law requires.

Assessing the employment contract, the facts and the available evidence at an early stage is often decisive in protecting an employee’s position effectively.

Need an assessment?

Every case turns on its own facts and on the documents behind them. For an initial assessment of your position, you are welcome to contact the Firm at info@topouzislegal.com.

This article is provided for general information only and does not constitute legal advice on any specific matter.