Think you might have an Unfair Dismissal Claim?
What Is Unfair Dismissal?
Before you can even consider whether your employer had a fair reason to dismiss you or if they did, whether proper procedures were followed, you must qualify for the right to claim unfair dismissal. This means that you
Be an employee
Have been dismissed;
Have worked for your employer for two years continuously (unless you fall into one of the exceptions to this – see below); and
Not fall into an excluded category (examples being share fishermen, the police force; employees working under illegal contracts, and those who work abroad).
Have you been dismissed?
You are considered to have been dismissed if:
Your employer expressly dismisses you or gives you the sack;
Your employer uses language that amounts to sacking you;
Your employer asks you to resign or be sacked;
You are on a fixed-term contract and your employer does not renew your fixed term contract; or
Your employer behaves so badly that you feel forced to resign (this is called “constructive dismissal” – for more information, see our constructive dismissal page)
I don’t have two years’ continuous employment – can I still claim?
If you do not have two years’ continuous employment, you can only make an unfair dismissal claim if you fall into one of the exceptions to the two-years’ service requirement. If your dismissal is related to one of the following you do not need to have two years’ service:
Maternity dismissals – when you are dismissed for anything associated with pregnancy, childbirth or adoption;
Health and safety dismissals – when you are dismissed because you were the designated person to carry out Health and Safety related activities and did so, either as a representative of workers or after being asked by your employer, you brought to your employer’s attention something which you believed to be harmful to Heakth and Safety or you reasonably believed a danger was serious and imminent and you either left or refused to return to work or you took steps to protect yourself or others from that danger;
Being a shop worker or a betting shop worker who refuses to work on Sundays;
Exercising your rights under the Working Time Regulations;
Being a member of a trade union or reason connected with trade union activity;
Being a trustee of an occupational pension scheme;
Being an employee representative;
Taking action with regard to a tax credit;
Undertaking jury service;
Being a whistle-blower;
Asserting a statutory right (for example, minimum notice periods, rights associated with being a member of a trade union, hours you are legally allowed to work or rights in a TUPE situation); or
Selection for redundancy for any of the above reasons
Dismissal for one of these reasons is automatically unfair and there is no question of the fairness of the dismissal or its implementation.
If you think you might fall within one of these categories, please call one of our specialist Employment Barristers to discuss your case.
If you do not fall within one of these exceptions and you do not have two-years’ continuous service, explore whether your claim may be related to discrimination on account of your age, sex, race, religion or disability.
How will the tribunal decide if my dismissal has been unfair?
The tribunal will evaluate an unfair dismissal claim in three stages:
What was the employer’s reason for dismissing?
Was that reason one of the potentially “fair reasons” for dismissal such as misconduct?
If so, did the employer behave reasonably in dismissing you?
A fair reason to dismiss?
Your employer has to demonstrate to the tribunal that the reason for dismissing you was one of the potentially fair reasons for dismissal found in S. 94 of the Employment Rights Act 1996.
There are five potentially fair reasons for dismissal:
This is about your ability to do your job with reference to your skills, aptitude, health or other physical or mental qualities.
Examples of situations where capability is a fair reason to dismiss include you not having the right qualifications for the job, you making repeated mistakes that have caused your employer to suffer loss, you failing to meet deadlines or you being absent for a prolonged or frequent yet intermittent period of time.
2. Conduct (sometimes referred to as gross misconduct)
For example, use of abusive language, drunkenness at work, theft, fraud, taking of bribes, disclosing confidential information, persistent lateness, taking unauthorised and prolonged time off, assault or unacceptable personal appearance.
The conduct can be a one-off, serious incident or it can be a series of incidents for which warnings have been issued but not adhered to.
If this reason applies to you, see our specialist redundancy page.
4. Statutory illegality
This is when it becomes legally impossible to employ you.
The usual examples of when this might occur are when your work permit expires or your job is contingent on you being able to drive and vehicle and you are disqualified from driving.
5. Some other substantial reason
This covers other fair reasons outside of the other four. Usually, the reasons that are considered to be fair under this heading are to do with business organisation (falling short of redundancy) or a necessary change to employment terms for the survival of your employer’s business.
If there been a breakdown in relationships at work if may be fair for the employer to dismiss one of those involved.
Your employer cannot arbitrarily change the terms of your employment. However, your employment contract, especially if you work for the employer for a considerable period of time, is likely to need adjustments and amendments to cover both your needs as well as your employer’s needs.
You are not obliged to accept variations to your employment contract, but if the changes are necessary to protect the commercial interests of your employer and it is reasonable to request the variation, then your employer may have a fair reason to dismiss you if you refuse to accept the variation.
The tribunal will consider whether the variation in your terms of employment is reasonable in the circumstances. This evaluation will include considering the disadvantages you will suffer alongside the advantages your employer will gain, as well as whether your colleagues have accepted such variations to their contracts and whether a trade union has recommended the acceptance of the changes.
Implementation of that fair reason
If your employer does have a potentially fair reason to dismiss you, then the tribunal will go onto consider:
1. Did your employer use a fair procedure when dismissing you?
This will depend on whether the employer followed proper procedures when handling your dismissal. Was there a full investigation? Was there a proper hearing? Was there a right to appeal? Where you allowed a companion in the hearing?
If an unfair procedure was followed this will make your dismissal unfair even if your employer can show that following the fair procedure would still have resulted in your dismissal. However, this is likely to affect the amount of compensation you receive.
If the procedure followed by your employer was fair, then the tribunal will consider question b.
2. Was your employer’s decision to dismiss reasonable in the circumstances?
The question that will be considered is: “what would a reasonable employer have done in the circumstances?”
This means, for example, imagine you are accused of stealing a company laptop. Your employer has investigated the allegation and now has to decide whether or not to dismiss. There is a range of options available to your employer – caution, warning, final warning, suspension or dismissal. It may be that some employers would not dismiss in the circumstances; but if some employers would dismiss then the conclusion of the tribunal has to be that the decision was fair and your claim for unfair dismissal would fail.
The tribunal will consider all of this with regard to the size and administrative resources of your employer.
Are there any time limits?
Yes, you must bring your claim within three months of the date your contract of employment was terminated.
The actual date your contract was terminated varies according to whether notice was given or not:
If notice was given, the date of termination is the date your notice expires.
If no notice was given and you were summarily dismissed (asked to leave immediately), the date of termination is your last day at work.
If you are given payment in lieu of notice, the date of termination usually your final day at work
If you were employed on a fixed-term contract, the date of termination is the date the contract expires and is not renewed.
If you are dismissed and you appeal that decision through your employer’s disciplinary or grievance procedures and the dismissal is then upheld, the date of dismissal remains the original date when you were asked to leave.
How do I finance a claim?
There are many ways in which claim can be financed. You may be entitled to Trade Union support. More promisingly, you may find on close examination of your household insurance policies that you benefit from legal expenses insurance – YEB barristers are expert at dealing with insurers.
The highly publicised Employment Tribunal Fees should never in fact be a barrier to a deserving ET claims
What can I get?
If your claim is successful, the possibilities are:
A reinstatement order. This means you can return to your job and will be given compensation for any loss you have suffered in the period since your dismissal until your reinstatement. This will only be ordered if you agree to it. Your employer can refuse to reinstate you where it is reasonable to do so. This normally happens when the employer can prove that the mutual trust and confidence has been irreparably broken. If an employer unreasonably refuses to reinstate you then you could get an additional compensation award.
A re-engagement order. This means you can return to a similar job or to a job with an associated employer. As above, you have to agree to this and your employer can refuse provided their reason is reasonable.
The maximum amount of compensation you can recover is £78,335 unless your claim engages the Equality Act (discrimination) or certain other circumstances (suh as whistle-blowing).
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