Unfair dismissal is the term used where an employee has been dismissed for an unfair reason or where an employer did not follow the correct procedure before the dismissal or where the employee was faced with no alternative but to leave employment because of unfair or discriminatory treatment, in which case they constructively dismissed themself.
What constitutes a dismissal?
Of course, if your employer fires you or makes you redundant then you will have been dismissed. However, if as an employee you felt forced to leave your job as a result of bullying or unfair treatment for example, then this can constitute a dismissal. Similarly, if you are denied your job upon return from maternity leave or refused renewal of a fixed term contract then this will be a dismissal.
Do you have the right to claim unfair dismissal?
To claim for unfair dismissal the following elements must be satisfied:
- You must be an employee of a company as opposed to self-employed (in some circumstances this is not always the case); and you must not be in an exempt category, such as in the armed forces or police officers;
- At the time of your termination you must have had a qualifying one year’s continuous service with the company. There are exceptions to the twelve month rule. For example, you may be a pregnant woman and you are dismissed for this very reason before your qualifying twelve month period, or it may be for a health and safety related issue;
- Any claim must be filed within 3 months of either your dismissal or the last act of discrimination. For more information please see our questions and answers section (below). Alternatively, please feel free to contact us.
What would be a fair reason for dismissal?
Not every type of dismissal is unfair, in fact some types of dismissals can be justified by the employer if they can show a fair reason such as: Redundancy; Conduct; Capability including long-term or excessive sickness; Legality (for example no visa); However, a fair reason alone will not necessarily deny you an unfair dismissal claim. The dismissal also has to be fair in all the circumstances, which means that both the procedure and the resulting decision to dismiss have to be fair.
Does a Procedure Have to be Followed?
Once a reason has been established, there are procedures employers must strictly follow in order to dismiss you in a way that is fair. If your employer fails to follow the correct procedure you may have a claim for unfair dismissal, even though the reason for your dismissal is potentially fair.
Was the decision to dismiss reasonable?
Even if the employer can establish that the reason for the your dismissal was fair and that he followed a correct procedure, you may still have a successful claim if the decision to dismiss you was not in the band of reasonable responses open to the employer. For example, in some cases further training, as opposed to dismissal, may be a more appropriate response to poor performance at work.
What is Gross Misconduct?
Gross Misconduct is behaviour or an action that can reasonably be argued has broken down the employer’s confidence and trust with the employee. Something, which a warning or disciplinary action would be insufficient to appropriately address the issues. This may be the result of such behaviour such as, being drunk, theft or fighting. The employer in this instance may dismiss the employee without notice and following the full procedures.
What is the correct procedure to appeal my dismissal?
There are statutory deadlines and procedures in which to address your dismissal with your employer and there may also be company policies and procedures you will likewise be required to follow.
You have three months from Dismissal or the last act of discrimination to issue your claim at the Tribunal. This date is extremely important and failure to act within the time frame could mean you lose the right to bring an action;
Where possible you should have sent the employer a written grievance detailing your complaints in order for them to carry out an investigation. This can be during the disciplinary procedure, before you leave the employer or after you have left or been dismissed;
Once you have received a decision you should appeal this where possible, but ensure at all times that you do not forget the three-month filing date. You don not have to appeal, but if you later decide to go to an employment tribunal and you win your case, the tribunal may reduce any compensation awarded to you as a result of your failure to appeal;
Once an ET1 (the claim form) has been filed the Employer will need to file their defence in an ET3. At any time during the process the parties can settle or make settlement offers;
Witness statements and evidence bundles are prepared and exchanged and a date for a hearing will be listed;
One consideration during this process you should note is that your legal costs cannot ordinarily be recovered from the employer. The sums you are likely to be awarded if successful should therefore be estimated to exceed your anticipated legal costs, check this with your legal representative before you proceed. Likewise this does also mean that your employer, should you lose, cannot recover its costs from you.
Can I get my job back?
The tribunal can order reinstatement or re-engagement if you win a dismissal case but this is very rarely done in practice. Even when tribunals make such an order, employers commonly refuse to implement it. If your employer refuses to comply, you have to apply again to the tribunal. It will probably award you additional compensation in such a situation. If your employer still refuses to comply, you have to pursue the matter in the County Court. Ultimately, your employer cannot be forced to take you back and the final penalty is compensation.
What will it cost?
As you will appreciate it is hard to anticipate how much time will be spent on every case as each matter is unique and will often depend on the volume of documents; sums claimed; period of time the problems extended etc. In as much as it is possible to estimate we say that your written grievances and appeals largely cost £750-1500 plus VAT and an ET1 £1000 plus VAT in addition to settlement negotiations and advice in relation to the value of your claim. We tend to advise clients to budget for a minimum spend of £6000 plus VAT.
How much is the basic award?
For the basic award the tribunal gives:
- Half a week’s gross basic pay for each year of service in which you were below the age of 22;
- One week’s gross basic pay for each completed year of service between the ages of 22-41;
- One and a half weeks’ gross basic pay for each year of service over the age of 41.
The maximum number of years which can be compensated is 20. The maximum amount of weekly gross pay which can be taken into account is £380. Any money earned above this sum is disregarded. The maximum basic award is £11,400 (£380 x 1.5 x 20), for a termination date on or after 1 October 2009.
How much is the compensatory award?
The compensatory award is made to compensate for loss of earnings. This can include net pay, benefits, overtime and bonuses. It can also include loss of pension rights and loss of statutory rights. The amount of any Jobseeker’s Allowance or Income Support you receive since the dismissal will be deducted from the award. The maximum compensatory award for loss suffered following a dismissal is £65,300 (for date of termination on or after 1 February 2010). Discrimination, failure to follow fair procedure, wrongful dismissal claims will be added on to this claim.
If you believe that you have been unfairly dismissed from your place of work, or are unclear about your position, then please do not hesitate to get in touch with us to see if you have a claim.