Made Redundant after asking for flexible working?

Posted: Thursday May 23 2019

By: Guest Blogger

Dismissed because of being part time or asking for flexible work? Did you know that after an employee has been employed for more than two years, they are entitled to only be dismissed for a fair reason, and as part of a fair process.

Made Redundant after asking for flexible working?

There are 5 reasons for which an employer’s dismissal can be fair:

1. Redundancy.
2. Capability.
3. A statutory duty or restriction prohibiting the employment from continuing.
4. Conduct or gross misconduct.
5. Another ‘substantial’ reason. This is a complicated area but could be (for example) where a client complains about an employee and refuses to work with them, or there’s a personality clash.

However, where an employee has been employed for less than two years, they will be unable to claim unfair dismissal, unless they can establish an “automatically unfair dismissal”.

 

Under the Employment Rights Act, a dismissal is automatically unfair if the employee is dismissed for:

• Family reasons, such as asking for maternity leave;
• Health and safety reasons;
• Making a protected disclosure;
• Joining a trade union;
• Requesting flexible working;
• Attending jury service; or
• Asserting their legal rights at work (e.g. minimum wage, breaks).
This applies regardless of their length of continuous employment.
Also, if a dismissal if for a potentially discriminatory reason (e.g. disability) then they may still be able to make a claim for unfavourable treatment by virtue of their protected characteristics, which may extend to their dismissal.

Asking for flexible working

It is automatically unfair to dismiss or make an employee redundant on the grounds that they either made an application for flexible working, proposed to do so, brought proceedings against the employer to enforce their flexible working rights, or alleged that they may have had grounds to bring such proceedings (s105(7BA)).
Asserting their legal rights – part time workers

If an employee were to be dismissed because they may be bringing proceedings under the Part Time Workers Regulations, or that the employer believes or suspects that they might do so, this would also be an unfair dismissal. It is also unfair to dismiss an employee where they have alleged that an employer has infringed the PTW Regulations, unless that allegation is false and is not made in good faith.

Often people are unaware of this additional protection. Should you be considering dismissing an employee, and you are concerned that they may bring a claim for unfair dismissal, or you have been dismissed in the last 3 months please feel free to get in touch with us.

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