Unfair dismissal

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Unfair dismissal – a guide

Redmans is an award-winning firm of specialist employment law solicitors, acting for UK employees and senior executives. We are one of the only law firms in the UK that specialises solely in employment law and we have a very high success rate (usually without the requirement to issue an Employment Tribunal claim).

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If you’re being subjected to disciplinary proceedings or have been dismissed then you may have a claim for unfair dismissal – find out more about the law & practice relating to unfair dismissal and your rights below

What is unfair dismissal

You have the right under the Employment Rights Act 1996 to make a claim for compensation to the Employment Tribunal if you believe that you have been unfairly dismissed. However, before you do make such a claim you should work through the steps below to ensure that you are entitled to make such a claim and, if possible, contact a firm of solicitors to have your case evaluated.

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Examples of unfair dismissal

  • Your employer dismisses you but fails to carry out any investigation or disciplinary hearing into the allegations made against you – this would be an unfair dismissal
  • Your are being bullied, your employer completely fails to investigate a grievance that you submit because of the bullying, and you resign as a result – this would be a case of constructive dismissal
  • You make a complaint at work that you think that your employer is breaking the law by, for example, bribing officials in a foreign country. You are then sacked because you brought this to your employer’s attention – this would be a case of automatic unfair dismissal

Unfair dismissal cases in the news

  • Sacked gran who revealed golf club ‘affair’ gets £50,000 payout (The Express)
  • Former BA pilot loses £110,000 unfair dismissal claim after blowing whistle on colleague who he claimed risked ‘committing a criminal offence’ by flying damaged aeroplane (Mail Online)
  • Kirklees College lecturer wins £78,000 unfair dismissal case after “mental torture” in role (The Huddersfield Daily Examiner)
  • Former Queen Mary lecturer’s unfair dismissal claim rejected (The Times Higher Education Supplement)

Steps to work through to determine whether you have been unfairly dismissed

A dismissal may be fair or unfair, depending upon the circumstances of the dismissal. You should take a careful look at the steps below to determine whether you believe you can make a claim for unfair dismissal or not:

  • Step one: Determine whether you are entitled to make a claim for unfair dismissal
  • Step two: Identify whether you have actually been dismissed
  • Step three: Determine whether you think you have been discriminated against by being dismissed
  • Step four: Consider whether your dismissal may have been automatically unfair
  • Step five: Check the dates to find out whether you are still within the “limitation date” for a claim

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Step one: Determine whether you are entitled to make a claim for unfair dismissal

There are some categories of “employees” who are excluded from making an unfair dismissal claim in the Employment Tribunal:

  • People who are not employees, such as “workers” and “self-employed” persons e.g. freelance contractors, casual workers etc. However, although an employer may claim that you are not an “employee”, this doesn’t necessarily mean that you are not – there is a legal test to determine whether your actual employment status
  • Employees who work outside of the United Kingdom (unless they are operating under a UK contract of employment – it’s a good idea to get advice if you do work outside of the UK as this may be a complicating factor in an Employment Tribunal claim
  • Police officers
  • Members of the armed forces
  • Registered dock workers
  • Share fishermen

Qualifying to make a claim for unfair dismissal

In order to make a claim for unfair dismissal, you must meet the following criteria:

  1. You must be an employee (this may mean that you have a written contract of employment but, equally, it may not); and
  2. You must have had two years’ continuous service with your employer (if employed on or after 6 April 2012) or one years’ continuous service (if employed before 6 April 2012) (“the qualifying time”)

However, you may be able to avoid meeting the qualifying time if you are dismissed for an automatically unfair reason or if your dismissal has been discriminatory.

Step two: Identify whether you have actually been dismissed

Although this may seem like an obvious point, it is necessary to have actually been dismissed before making a claim for unfair dismissal. There are 3 main ‘types’ of dismissal:

  • Your employment is terminated by your employer (with or without notice)
  • You terminate your contract of employment i.e. resign (with or without notice)
  • Expiry of a fixed-term contract
  • Forced resignation
  • There is a mutually-agreed termination

What will generally not amount to a termination

There may be some circumstances in which you are not defined as being dismissed. If you do not know whether you have been dismissed or not then you should contact a specialist employment solicitor to gain advice. The following circumstances will generally not amount to a dismissal by your employer:

  • If you are suspended on full pay
  • If you leave your employment without your employer having breached your contract
  • If your employment ends by mutual agreement
  • If a job offer is withdrawn by your employer before you start work
  • If your circumstances drastically changed (e.g. you are on sickness leave absence for a long period of time) and your contract is frustrated

Your employment is terminated by your employer

Your employment may be terminated by your employer with or without notice. Generally, you must be provided with notice of the termination of their contract (their dismissal) if you have been employed for one month or more with your employer. However, you may not be entitled to notice of your dismissal if you are employed for less than one month or if you have committed an act which is deemed by your employer to constitute gross misconduct. You may be deemed to have committed an act of gross misconduct in you have done any of the following (among others):

  • If you have committed a criminal act at or outside of work
  • If you have acted violently at work or outside of work
  • If you discriminate against a colleague or a third party because of their race, age, disability, gender etc.
  • If you sexually harass a colleague

There are six”potentially fair” reasons that your employer can use to terminate your employment. These are:

  • Misconduct
  • Capability
  • Redundancy
  • Retirement
  • Illegality
  • Some Other Substantial Reason

Your employer should normally following the ACAS Code of Practice on disciplinary and grievance procedures.

You terminate your employment (resignation)

Employees may resign from their employment with their employer for any reason. However, if the reason for the employee resigning is that they have been pressurised in some way which has breached their contract of employment or their employer has breached an important term of their contract then you may resign and make a claim for unfair constructive dismissal (“constructive dismissal”). Again, you must have had two years’ continuous service with your employer (if employed on or after 6 April 2012) or one years’ continuous service (if employed before 6 April 2012) to make a claim for constructive dismissal. Examples of situations in which employees can resign and claim constructive dismissal include:

  • If your employer changes your hours of work, pay, and/or location without your consent (and is not contractually-entitled to do so)
  • If your employer fails to deal with bullying in the workplace that you have reported to it
  • If your employer fails to adequately deal with a grievance that you have submitted

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Step three: Determine whether you think you have been discriminated against by being dismissed

If you think that you have been dismissed from your employment because of your age, sex, disability, race, sexual orientation, gender orientation, religious or philosophical belief, because you are pregnant or on maternity leave, or because you are married or in a civil partnership then you can make a claim for discrimination to an Employment Tribunal instead of, or in addition to, a claim for unfair dismissal. The ‘benefit’ of a claim for discrimination is that you do not have to have worked for any particular period of time (unlike unfair dismissal claims) to be able to make a claim for discrimination. If you are making a claim for unfair dismissal (as above), you must have worked for your employer for two years or more (if you started work on or after 6 April 2012), or for one year or more if you started work before 6 April 2012.

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Step four: Consider whether your dismissal may have been automatically unfair

There are certain situations in which your dismissal may have been automatically unfair. Whether the reason for your dismissal is unfair will depend upon what has caused your dismissal, the explanation that your employer is giving for your dismissal, and the procedure that your employer has followed. The reason that your employer has given you for the dismissal may not be the real reason. Broadly, there are two ‘sub-types’ of unfair dismissal:

  1. Situations where your dismissal is automatically unfair and it does not matter how long you have worked for your employer for; and
  2. Situations where your dismissal is automatically unfair and where you must have worked for your employer for a certain period of time

Situations where your dismissal is automatically unfair and it does not matter how long you have worked for your employer for If an Employment Tribunal finds that the reason for your dismissal was any of those listed below then your dismissal will be automatically fair (among other things):

  • Pregnancy and maternity (e.g. if you took or sought to take maternity leave)
  • For exercising parental rights (e.g. taking or seeking to take paternity leave, adoption leave, or parental leave)
  • For asserting a statutory right (e.g. the right to minimum notice, the right to an itemized payslip, the right to be given a written statement of terms and conditions etc.)
  • For refusing to work or taking appropriate steps for self-protection where you believe health and safety in the workplace is putting you in danger
  • Because the worker is joining or not joining a trade union, taking part in its activities, using its services, or refusing to accept an inducement
  • Because the worker has exercised the right to be accompanied at a disciplinary or grievance hearing or because they’ve sought to accompany another worker
  • Because of your political views or political connections (however, if you were dismissed for this reason then it will not have been “automatically unfair” to dismiss you if your employer has carried out a fair process and made a reasonable decision when dismissing you. If your employer has taken these steps then it is likely that your dismissal will be fair)

Situations where your dismissal is automatically unfair and where you must have worked for your employer for a certain period of time If you have not been dismissed for any of the reasons listed above but have been dismissed for one of the reasons listed below, then you may have been automatically unfairly dismissed. However, you will need to have worked for your employer for one year (if you started work before 6 April 2012) or two years (if you started work on or after 6 April 2012). Reasons:

  • Transfer of the business from your employer to another organisation
  • Because the worker has not disclosed a “spent” conviction

If you believe that you have been dismissed for any of the above reasons and want to make a claim to the Employment Tribunal then you should contact an expert employment law solicitor to obtain advice.

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Step five: if your employer has dismissed you for a reason which is not automatically unfair

If you have been dismissed from your job by your employer and the reason for your dismissal isn’t one that is automatically unfair (see above under Step four: Consider whether your dismissal may have been automatically unfair), the reason for your dismissal may still have been unfair if your employer didn’t make a reasonable decision to dismiss you or if it failed to carry out the proper procedures. However, in order to make a claim for unfair dismissal you must have worked for your employer continuously for one year (if you started employment before 6 April 2012) or two years (if you started employment on or after 6 April 2012). If your employer has dismissed you then it must be able to argue that the reason for your dismissal fell within one of the six “potentially fair” reasons. These six “potentially fair” grounds are set our below:

  • Your employer says that you were not capable of doing your job any longer (further explained below)
  • Your employer says that you were guilty of misconduct (further explained below)
  • Your employer is making you redundant (further explained below)
  • Your employer says that you do not have the correct qualifications for you to do your job or employing you would be otherwise illegal (further explained below)
  • Your employer says that you have done something illegal (further explained below)
  • Your employer gives some other substantial reason for dismissing you (known as “SOSR”)

It is very important that you stay within the relevant time limits if you are considering making a claim for unfair dismissal in the Employment Tribunal – you should contact an expert employment lawyer immediately for advice if you have been dismissed. Time limits are explained below under What to consider if you’re thinking of making a claim for unfair dismissal.

Your employer says that you were not capable of doing your job any longer

Your employer may claim that your dismissal relates to the capabilities or qualifications that you have (or do not have) to do the job that you were employed to do. Your employer may claim that one or more of the following apply:

  • You are not competent or able to do the job to the standard expected by the employer (a “competence” dismissal)
  • You are not flexible  enough at work or are disruptive or not prepared to adapt (an “aptitude” dismissal)
  • You are too prone to ill-health or sickness absences (“sickness and injury dismissals”)
  • You are dismissed due to some injury or loss of other faculty which impairs your ability to do your job
  • You lose your qualification or fail to obtain a qualification which was a condition of your employment

Your employer says that you were guilty of misconduct

Your employer may claim that your dismissal relates to some aspect of conduct on your part. What can be viewed as misconduct will vary from one employer to the next (and you must check any written contract or disciplinary procedure to see what your employer defines as misconduct), but there are a number of activities which are generally recognised as constituting misconduct in the workplace, such as:

  • Theft or other dishonesty;
  • Violence and fighting;
  • Unauthorised absenteeism or lateness;
  • Threatening or abusive language;
  • Being under the influence of alcohol or drugs

Please note that the above list is not exhaustive.

Some acts of misconduct may be seen to be gross misconduct i.e. conduct which is so serious that your employer has the legal right to immediately terminate your contract of employment and not pay you the notice pay that you would otherwise be due.

Your employer is making you redundant

Your employer may claim that you are being made redundant. There are three broad situations in which you may be made redundant: where the business as a whole is closing; where the particular workplace where you are employed is being closed; and where the employer is reducing the size of the workforce. If your employer is seeking to make you redundant then it must: consult with you and give you proper notice of the redundancy; carry out a fair, thorough and prompt redundancy process; and offer you suitable alternative vacancies.

You may be entitled to a statutory redundancy payment and/or an enhanced redundancy payment if you are being made redundant.

Your employer says that you have done something illegal

Your employer may claim that you are unable to do your job as a result of some statutory restriction e.g. you are a lorry driver and you lose your driving licence. Your employer must be able to show that the statutory restriction affected the work which you were employed to do and that no other employment at your employer was available to you.

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Step six: Check the dates to find out whether you are still within the “limitation date” for a claim

If you think that you have been unfairly dismissed then you must make a claim to the Employment Tribunal within three months less one day of the date of your dismissal. This is addressed below under “What to consider if you’re thinking of making a claim for unfair dismissal”.

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Procedures your employer should follow when disciplining or dismissing you

If your employer is seeking to discipline or dismiss you then it should follow the procedures which are laid out in the ACAS Code. There is no absolute legal obligation to follow the ACAS Code but if you are dismissed and decide to take your employer to an Employment Tribunal then – should you succeed – your employer may be ordered to pay you more compensation if they unreasonably failed to follow the ACAS Code.

If your employer is following the ACAS Code then it should generally follow these steps:

  1. Your employer should send you a letter: if your employer is considering taking disciplinary action against you or dismissing you, then its first step should be to send you a letter setting out the nature of the allegations against you
  2. Your employer should carry out an investigation: your employer should carry out a fair, thorough, and prompt investigation into the allegations surrounding you
  3. Your employer should hold a meeting with you to discuss the allegations. You have a right to ask a work colleague or trade union official to attend the meeting with you
  4. Your employer should tell you what their decision is within a reasonable period of time
  5. You should be told by your employer that you can appeal your decision. You may not choose to appeal the decision but if you subsequently make a claim for unfair dismissal then you may have your compensation reduced by the Employment Tribunal. If you do choose to appeal your dismissal then your employer should hold a further meeting with you and inform you of their decision.

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Compensation for unfair dismissal in the Employment Tribunal

If you’re making a claim for unfair dismissal in the Employment Tribunal (and your claim is successful) then you should expect to receive the following:

  1. A Basic Award
  2. A Compensatory Award

The Basic Award

The Basic Award is calculated with reference to the following:

  • The number of years’ continuous employment you had with your employer
  • Your age at the time of your dismissal
  • Your gross basic wage (up to a maximum value of £464, currently)

The Employment will award you the following for your Basic Award:

  • 0.5 weeks’ gross basic pay for each year you were employed below the age of 22
  • 1 weeks’ gross basic pay for each year you were employed between the ages of 22 and 40
  • 1.5 weeks’ gross basic pay for each year you were employed above the age of 41

The manner in which your Basic Award will be calculated is the same way a redundancy payment would be calculated – you can check this calculation at the following website: https://www.gov.uk/calculate-your-redundancy-pay.

Example

You are 46 years old and worked for your employer for six full years before you were unfairly dismissed. You were paid a gross weekly wage of £600 per week.

Your Basic Award would be as follows: £3,944

The Compensatory Award

The Compensatory Award is based upon the loss of earnings that you have sustained as a result of being fired from your job. If you are successful with your claim then you will generally be awarded the following:

  • Past loss: your loss of earnings from the date of your dismissal to the earlier of two events: either the date that you achieve new employment on a higher or equal wage to the wage that you were earning at your previous employment or to the date of your Employment Tribunal hearing (subject to any deductions made for contributory fault, failure to mitigate etc., as explained below)
  • Future loss: the Employment Tribunal has the discretion to award you an appropriate amount for future loss of earnings after the date of the Employment Tribunal (again, subject to any reduction in the award for reasons specified below)

Example

You are dismissed from your employment for alleged gross misconduct on 1 April 2013 and are successful with your claim for unfair dismissal (at a one-day hearing on 1 November 2013). You are awarded past loss of earnings (at your ‘net wage’ of £400 per week) up to the date of the Employment Tribunal as you have not managed to find new employment yet. You would be awarded loss of earnings as follows:

  • Past loss: 30 weeks @ £400 per week: £12,000
  • Future loss: the Employment Tribunal, at its discretion, awards you an extra 26 weeks loss of earnings into the future: 26 weeks @ £400 per week: £10,400

An Employment Tribunal also has the power to award you the following, should it be appropriate in the circumstances:

  1. That the Compensatory Award is increased by up to 25% (because of your employer’s failure to adhere to the ACAS Code on Disciplinaries and Grievances (“the ACAS Code”))
  2. That your employer gives you your job back (or provide you with another job at the same institution)

However, the Employment Tribunal also has the power to reduce any award made to you if you have been unfairly dismissed, should the following apply:

  1. You have failed to “mitigate your loss”  by failing to take reasonable steps to find new employment after you have been dismissed (e.g. you fail to take reasonable steps to apply for new employment, you fail to try and obtain state benefits etc.)
  2. You are to some extent blameworthy or culpable for your dismissal
  3. Your employer failed to take the correct procedural steps to dismiss you but, should it have actually carried out those steps, it would have come to a fair decision to dismiss you
  4. You unreasonably failed to comply with the ACAS Code

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What to consider if you’re thinking of making a claim for unfair dismissal

If you’re thinking of making a claim to the Employment Tribunal then you should consider the following:

  1. Are you within the relevant time limits for your claim?
  2. Have you gone through the ACAS Early Conciliation process?
  3. Do you have strong claim for unfair dismissal?
  4. What is your claim worth?
  5. Do you have to pay Employment Tribunal fees?

Are you within the time limit for making a claim?

If you are making a claim for unfair dismissal then you must make your claim within the relevant time limits – within three months less one day of the date that your dismissal took effect. This is also known as the “limitation date”. If you fail to make your claim for unfair dismissal on or by the limitation date then you will generally be barred from making a claim for unfair dismissal (although exceptions apply).

Example

You are summarily dismissed for gross misconduct on 2 February 2014. You have three months less one day to make a claim for unfair dismissal to the Employment Tribunal and your limitation date is therefore 1 May 2014 (although this would be extended because of the ACAS Early Conciliation process).

Have you gone through the ACAS Early Conciliation process?

From 6 April 2014, the Advisory, Conciliation and Arbitration Service (Acas) will begin a process of trying to resolve a dispute before it goes to an employment tribunal. This process is free and confidential and is called early conciliation.

You must contact Acas to tell them that you intend to bring a claim before you can present a claim to an employment tribunal. This does not mean that you actually have to take part in conciliation. You only have to notify Acas of your potential claim.

If early conciliation applies to your case, this will affect the time limit for presenting your case to an employment tribunal.

Do you have strong claim for unfair dismissal?

What is your claim worth?

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Getting legal advice on your unfair dismissal claim

It is strongly advised that you obtain specialist legal advice on your unfair dismissal claim either before or after your make your claim to the Employment Tribunal. Our solicitors are employment law specialists and can advise you on your claim for unfair dismissal – please contact our solicitors on the following details if you think that you have a claim for unfair dismissal:

You can also obtain legal advice from the following sources:

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Case studies of unfair dismissal claims in the Employment Tribunal

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Call Redmans today to discuss your employment law matter

Call Redmans on 020 3397 3603 or email us at enquiries@redmans.co.uk to discuss your employment law matter.

Alternatively, you can call Chris Hadrill, the partner responsible for the employment department, on 020 3397 3601 or email him at chadrill@redmans.co.uk.

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