Unfair Dismissal
Have you been unfairly dismissed by your employer and need a solicitor’s help?
Looking for Unfair Dismissal Advice? Our Solicitors Can Help You.
What is Unfair Dismissal?
Unfair dismissal is when your employer terminates your contract without having a legally fair reason to do so. This is known as a ‘substantively unfair dismissal’.
An unfair dismissal can also be when your employer terminates your contract of employment with a potentially fair reason but handles your dismissal incorrectly. This is known as a ‘procedurally unfair dismissal’.
In either circumstance, there are laws that protect you.
To qualify to bring an unfair dismissal claim in the Employment Tribunal, you must meet a number of criteria. You must:
- Be an employee (rather than self-employed or, in most cases, working through an agency),
- Normally have at least two years of continuous employment (subject to certain limited exceptions),
- Be in employment that has a sufficient connection to Great Britain,
- Be within the 3-month time primary limit for bringing a claim to the Employment Tribunal.
Why Can an Employer Dismiss You?
Employment tribunals follow certain guidelines that contain potentially fair reasons why a person can be fired or dismissed. These are Capability, Conduct, Redundancy, Breaking the Law and SOSR (“Some other substantial reason”).
Capability – refers to the capability and competence of an employee to do their job.
Conduct – this includes the employee’s actions at work, including their misdemeanours, abusive or racist behaviour, unauthorised absence, poor punctuality, theft from the company, etc.
Redundancy – employers are required to consult, fairly select employees for redundancy and consider alternatives to avoid redundancy. An employer cannot be seen to target a single individual for redundancy or make redundancies at random.
Breaking the law – an employee cannot continue doing the job they do without the employer or employee contravening any enactment.
Some Other Substantial Reason (“SOSR”) – this is the “catch-all” category. It covers the situation where an employer seeks to change the employee Ts & Cs; protecting the employer’s legitimate business interests; third party pressure to dismiss an employee; breakdown in trust and confidence and a personality clash.
Another common reason, not listed above, is constructive dismissal. This refers to the situation when an employer gives you no other choice but to resign, often because of bullying at work.
Band of reasonable responses
Once an employer has established a potentially fair reason for dismissal, they must then show that it was reasonable to dismiss for that reason in all the circumstances having regard to the size and administrative resources of the employer and all the circumstances of the case.
The decision to dismiss you must fall within the band of reasonable responses of a reasonable employer.
Procedure
The employer must follow a fair procedure. First, they must conduct a full investigation into the allegations. Secondly, they must make sure all the evidence is put to the employee. The employee then must be allowed an opportunity to consider it and to respond to it.
The employer must follow the ACAS Disciplinary Code failing which any damages can be uplifted by 25% at Tribunal.
Taking Employer to Tribunal
If your employer has acted unfairly and outside the band of reasonable responses, you can instigate proceedings at an Employment Tribunal for Unfair Dismissal seeking compensation. Our expert Employment Law Solicitors can help you with such a claim.
If you need help of an expert Employment Law Solicitor, call us on 0800 612 9509 or complete one of our contact forms. Alternatively, fill in our Tribunal Claim Assessment Form. Subject to a favourable assessment of the merits and depending upon the value of your claim, we may offer to represent you on a No Win No Fee basis.
Has There Actually Been a Dismissal?
Usually, it is obvious whether a dismissal has taken place. The employer will have told the employee they have been dismissed and will usually have confirmed it in writing.
Sometimes, however, it is more complicated. For example, when a misunderstanding takes place and an employer says something unclear to the employee and they interpret it as a dismissal (even if that was not the employer’s intention).
If an employer acts in a way that undermines the relationship between employer and employee or commits a breach of contract – such as not paying wages, the employee is entitled to resign and claim constructive dismissal.
This is a phrase meaning the resignation is deemed to be a dismissal because of the way the employer has acted.
What is the Unfair Dismissal Process?
Stage 1 – Prove the reason for dismissal
For there to be a dismissal, your employer must prove that the reason (or if there is more than one principal reason) falls into one of the categories set out in the Employment Rights Act 1996. These categories are:
- You (the employee) lacked the required capability or qualification to carry out your role,
- The dismissal was a result of your conduct – such as dishonesty, poor attendance or failure to follow instructions,
- There was a genuine redundancy,
- The continuation of your employment would contravene a statute, for example, there is a requirement to drive during the course of your employment but you have been banned due to speeding,
- Some other substantial reason (SOSR) – any reason that does not fall within the above. This, however, does not mean it is any easier for an employer to raise this. Some example SOSR’s include:
- A personality clash between you and your employer,
- A client expresses a wish that you are no longer involved in managing their account,
- You unreasonably refuse to accept changes to terms and conditions.
If your employer is unable to prove one, or more, of the above reasons for dismissal then the termination of your employment will be deemed to have been unfair.
If your employer can prove that the reason for your dismissal does come under one of the above categories, it is still down to the Employment Tribunal to decide “in accordance with equity and substantial merits of the case” as to whether or not the dismissal was fair.
Stage 2 – Take the dismissal to a tribunal
The tribunal will also need to decide whether the dismissal was within the “range of reasonable responses” of that employer.
The employer, for example, may have had grounds for dismissing you because of your performance or conduct, but that does not mean they had to take this step.
If the tribunal believes that no reasonable employer would have dismissed an employee under the same circumstances, then the dismissal will still be unfair. The tribunal in making its decision will also take into account the size and administrative resources of an employer.
What can you do if you have been unfairly dismissed?
If you want to take your case to an employment tribunal, you must be able to prove that your dismissal was unfair under UK employment law. Likewise, your employer has to show evidence to the contrary.
We strongly suggest seeking legal advice at this stage in order to assess your situation and collate the required evidence. You can contact us for free employment law advice and a free initial assessment of your case.
When defending the allegation, your employer will be required to prove:
- They followed the correct dismissal procedure,
- They did not single you out or treat your situation as special,
- That you were previously and sufficiently made aware of company policies and rules.
You can only take your case to a tribunal if you have followed the normal procedure of your company and still not reached a satisfactory outcome.
It is important that you have kept copies of all correspondence between yourself and your employer, including any meetings held, and notes about events and actions relevant to your dismissal.
If you would like to see if you qualify, please fill in our Employment Tribunal Claim Assessment form. If your Employment Tribunal Claim proceeds, it will be on a No Win No Fee basis.
Compensation for Unfair Dismissal
If successful, a claim for unfair dismissal will lead to damages being awarded by the Employment Tribunal.
The damages are made up of two elements, namely:
- The Basic Award,
- and The Compensatory Award.
Unfair Dismissal – Basic Award
There are two main elements in the calculation of the basic unfair dismissal award. These are the length of your service at the effective date of termination and your age at the time of dismissal.
For the purposes of calculating a maximum of £489 per week gross (from 6th April 2017) is allowed and up to a maximum of 20 years’ service (maximum of £14,670). The calculation depends on the employee’s age, and uses a multiplier:
- half a week’s pay for each year of employment in which the employee is under the age of 22,
- one week’s pay for each year of employment in which the employee is below the age of 41 but not below the age of 22,
- one and a half weeks’ pay for each year of employment in which the employee was not below the age of 41.
There is no lower age limit for a Basic Award (unlike a Statutory Redundancy Payment).
The Basic Award can be reduced:
- if the employee unreasonably refuses an offer of reinstatement;
- if the employee is held to have contributed to his/her own dismissal by his/her culpable conduct;
- and by any payments already made to the employee, for example, money in lieu of notice or redundancy payments.
- where the employee has been unfairly dismissed for reasons relating to a trade union “blacklist” and has received a Basic Award in respect of the same dismissal.
Unfair Dismissal – Compensatory Award
The elements that make up the award are:
Loss of wages up to the date of the Tribunal hearing – This covers the period from the end of the notice period (or dismissal) to the date of the Tribunal hearing, less any earnings from new employment, or to the start date of a new job if higher paid.
Future Loss of Wages – As estimated by the Tribunal. If you have found a new job, this element is not included unless your new employment pays less, in which case the Tribunal estimates this future loss. Most Tribunals will award between 6 and 12 months’ future loss, although in some cases Tribunals can award significantly more.
Loss of Associated Benefits
Loss of a car, health benefits, share options, pension loss, etc.
Moreover, Loss of Employment Protection (Statutory Rights)
Usually anything between £250 to £700.
Loss of pension rights /contributions Expenses in seeking work
Case law has now established that there is no compensation payable for stress or injury to feelings in unfair dismissal claims.
Unfair Dismissal – Reduction in the Compensatory Award
The employee is under a duty to take reasonable steps to reduce his/her loss by gaining alternative employment as soon as possible. This is called “mitigation”. Any failure to mitigate will limit the loss of earnings awarded.
Any conduct on your part before the dismissal which contributed to that dismissal may lead to the compensation being reduced.
In any circumstances where the Tribunal considers it just and equitable to reduce the Compensatory Award, it may do so. This may sometimes be seen where the employer discovers after the dismissal that the employee was guilty of some serious misconduct other than that which he/she was dismissed for.
If the dismissal is held to be procedurally unfair, the Tribunal will ask itself the question of whether this failure would ultimately have made any difference to the outcome. If not, then compensation will be limited to the period it would have taken for a proper procedure to take place before a fair dismissal could have occurred. This is commonly known as a “Polkey” reduction.
Additional Award
An additional award is made if the employer fails to comply with an order made by the Tribunal for reinstatement or re-engagement unless the employer satisfies the Tribunal that it was not practicable to comply.
If the Tribunal orders the employee be reinstated and the employer fails to carry out this Order, an additional award of between 26 and 52 weeks’ pay can be made at a maximum of £489 per week (from 6th April 2017).
Frequently Asked Questions
How important is it that my employer follows the correct dismissal process?
Even if your employer has a justified reason to dismiss you, the dismissal will still be unfair if your employer did not follow the correct process.
This could be, for example, where they did not carry out a proper consultation or selection process in a redundancy situation.
For dismissals based upon misconduct or performance, the process that your employer should follow is largely governed by the ACAS Code of Practice.
The ACAS Code of Practice provides that there should be sufficient investigations, evidence, warnings (in most cases) and the right to be accompanied at meetings.
Can my employer rely on any new information found after I have been dismissed?
No, they cannot. The test as to whether or not the dismissal was fair is upon the basis of what the employer knew at the time.
No argument can be raised that your employer would have dismissed you in any event because of information they had discovered after you had been dismissed.
What is the qualifying period of employment necessary to make a claim for unfair dismissal?
You will need to have been continuously employed with the same employer for at least 23 months and 3 weeks without a break. Moreover, you must not have been served with a notice of your employment expiring before the 2 years.
You will have been in continuous employment if there has been a break which falls into one of the following categories:
- Sickness, maternity, paternity, parental or adoption leave,
- Annual leave,
- Employment overseas with the same company,
- Time off during unfair dismissal and being reinstated,
- When you move between associated employers,
- Military service, e.g. with a reserve force,
- Temporary lay-offs,
- Employer lockouts,
- When a business is transferred from one employer to another,
- When a corporate body gets taken over by another because of a legal change.
There are also some limited exceptions whereby the continuous period does not apply at all. This is known as automatic unfair dismissal.
What is automatic unfair dismissal?
A dismissal will be automatically unfair with no qualifying period of service necessary in exceptional circumstances.
These exceptional circumstances include:
- If the dismissal was connected with a health and safety reason that the employee became aware of,
- Where the employee has asserted a statutory employment right (such as maternity or paternity leave),
- Whistleblowing,
- Participating in trade union activities,
- Where the employee is dismissed by reason of a business transfer (as they are protected under the TUPE regulations, but they still need a qualifying period of service for TUPE claims).
Can anyone claim unfair dismissal?
The right to bring a claim to an employment tribunal for unfair dismissal is not available to:
- Self-employed people,
- Independent contractors,
- Members of the armed forces,
- Employees who have reached a settlement with their employer through ACAS (Advisory, Conciliation and Arbitration Service) or the Labour Relations Agency (LRA) in Northern Ireland,
- Employees who have reached a settlement with their employer through a binding settlement agreement after taking legal advice,
- Individuals employed under an illegal contract (for example, a barman under the age of 18),
- Employees covered by a dismissal procedure agreement that has been legally exempted from the unfair dismissal rules,
- Employees taking part in unofficial industrial action (unless the dismissal is for an automatically unfair reason),
- Police staff (unless the dismissal relates to health and safety or whistleblowing),
- Those working on a fishing vessel and paid a share in the profits or gross earnings of the vessel.
What is the difference between constructive and unfair dismissal?
Unfair dismissal refers to the act of having your employment terminated in a way that is unlawful. Typically this is when none of the 5 lawful reasons for being dismissed applies, or the employer has not followed the correct process.
Constructive dismissal is when you are put in a situation where you are forced to resign due to the conduct of your employer. This as a result has made the relationship untenable. Whilst it is referred to as a dismissal in law, the act itself is more like a resignation by the employee.
Can I claim unfair dismissal under 2 years of employment?
If you have a genuine unfair dismissal case and have been employed by your employer for more than 2 years then you may be able to claim to an employment tribunal.
Without at least 24 months of continuous service, you will not be able to make the claim.
The Next Step
If you are looking for a No Win Fee Employment Law Solicitor to represent you, we need to assess the merits of your potential claim which we are normally happy to do free of charge.
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