Contractors’ Questions: Is my early termination an unfair dismissal?

Contractor’s Question: I’ve been working for the past two months on a contract/temporary basis as an IT project manager for a project that’s at a critical stage. 

Today I was formally interviewed by HR due to an investigation into my partner, who is one of many stakeholders I report to. Although this investigation is ongoing and not into me, I’ve been terminated with a week’s notice.

Could this termination be seen as unfair dismissal? I feel like I am being used as a scapegoat but it would not help my cause if I said this to the IT company.

Expert’s Answer: In order to assess the fairness of one’s dismissal, it is imperative to appreciate the pertinent provisions of the Employment Rights Act 1996 (ERA 1996). According to section 98(1) and (2) of the ERA 1996.

Under this act, the onus is on the employer to show that they had a potentially fair reason for dismissing the employee. The employment tribunal is likely to construe the employee’s dismissal as being fair if it concerns the latter’s capability or qualifications, their conduct; their redundancy, a breach of a statutory duty or restriction and/or some other substantial reason.

Furthermore, only a qualifying employee can bring a claim for ordinary unfair dismissal. In other words, the dismissed individual needs to be continuously employed for a certain period of time prior to the effective date of termination (section 108(1) ERA 1996). A minimum two years’ service is normally required unless the employee started working before April 6th 2012, in which case a one-year qualifying period applies. Nevertheless, there are exceptional circumstances where an employee’s dismissal could be deemed automatically unfair. If such a scenario were to materialise, the employee would not have to satisfy the qualifying period of service criterion.

It is also important to emphasise that only an employee has the right not to be unfairly dismissed by their employer (section 94(1) ERA 1996). Section 230(1) of the aforementioned Act expressly articulates that that an employee is ‘an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment’. Hence, if you are a contractor, then you would not have the same rights that would be afforded to an employee.

Lastly, it would appear that the IT company has complied with the statutory minimum notice period requirement embedded in section 86(1) of the ERA 1996. You should, nonetheless, review the terms of your contract to see if you were entitled to a longer notice period before being terminated.

The expert was Mekael Rahman, trainee solicitor at Lawdit Solicitors.

Thursday 26th March 2015