Unfair dismissal - A Tier 2 migrant's perspective
In this day and age, people rely heavily on their employer to provide a safe job with good pay and excellent benefits, but on occasion, things can go drastically wrong and people are dismissed from their jobs. For those on a Tier 2 General Visa, the fear can be even worse - they could also lose their ability to remain in the country. Sometimes dismissal is entirely fair, the staff member is not performing as per their contract or are contravening the rules of their employment in another way that is often termed gross misconduct. But what if you have been dismissed unfairly? In this article, we will look at unfair dismissal and the wider implications of it on those who hold a Tier 2 General Visa.
What constitutes gross misconduct?
Gross misconduct is generally described as being employee behaviour that destroys the working relationship between employer and employee. This would merit instant dismissal. This would usually be very serious issues such as fighting with a colleague, refusing multiple requests to perform tasks, theft, internet abuse and insulting customers etc.
For most staff, gross misconduct is relatively understandable but due to the nondescript nature of the term, is open to abuse by employers. Often when a company is looking to remove an employee, they will use the term gross misconduct to dismiss the member of staff for any number of less serious infractions. In this instance, there may a be a case for unfair dismissal. If you are on a Tier 2 General Visa, then you must be very careful as your visa is linked to your job. If you are under threat of dismissal or already have been dismissed, then get in touch and we can talk you through your options.
What constitutes unfair dismissal?
In its essence, unfair dismissal is the removing of a member of staff for an infraction that is less serious than what should be termed gross misconduct. There should always be a fair reason for dismissal and if that does not exist then you may have recourse. At the very minimum, your company should hold a disciplinary hearing with you. They should explain clearly what they feel you have done and give you the opportunity to give your side of the story. If they still decide to dismiss you, you should be offered the option to appeal.
Failure to follow the proper protocol means that your company has left themselves open to a claim for unfair dismissal. This is obviously less important for someone on a visa who is more worried about remaining in the country. If you have been unfairly dismissed in your role working for a Tier 2 Sponsor Licence Holder then please get in touch as quickly as possible. Your employer is duty bound to inform the Home Office of your change of circumstances within 10 days so you must move quickly. We may be able to help you to remain in the country - especially if you have a case against the company.
What can I do if I have been dismissed unfairly for gross misconduct?
There are a few options for those who have been unfairly dismissed. In the first instance, you should be given the right to appeal the decision. If you are refused the right to appeal, or your appeal is unsuccessful, you may then need to take the legal route in order to try and secure your status in the UK. At this stage, you will want to consult a solicitor such as ourselves to get advice on raising a claim of unfair dismissal against your employer and how it will impact on your visa.
Is there a way to appeal against dismissal for gross misconduct?
Yes. You should be offered the right to appeal straight away against dismissal for gross misconduct. If your employer fails to give you this option then you will likely have an issue with maintaining your visa status - especially as the business has 10 days to inform the Home Office of your dismissal. Your appeal should be handled fairly, just like your disciplinary hearing should be, and you should be able to justify the reasons why you believe you have been dismissed unfairly and on the grounds that you would like to appeal.
You should always use the option of an appeal as there is sometimes new evidence that may come to light that can assist your case, or a senior figure in your business may step in to change the decision. It is vital that you try to sort out your situation as quickly as possible and while you are waiting to appeal, you should get in touch and let us advise you.
Can I be kicked out of the country after being dismissed unfairly?
Yes this is a distinct possibility and the reason you need to act quickly. The company has to tell the Home Office within 10 days that you have been dismissed. This is the case whether it was fair or not and hence you have to try and fix your situation quickly. The Home Office can chose to shorten your visa and give you 60 days to leave the country.
If you get in touch with our immigration solicitors, they can take a look at your case and advise you on what to do next. Obviously preservation of your visa is key and that's what our team will initially focus on. Once your visa has been secured, we can then look at your options for recourse.
Where can I go for more help?
If you need more help with an unfair dismissal claim for those on a Tier 2 General Visa, or indeed any other immigration issue then please get in touch. Our expert legal advisers can help you with all manner of issues and will help to fight your corner. For more information about our services, please get in touch and our expert legal team will be happy to help you.