Unfair Dismissal
What is Unfair Dismissal?
If you have been employed for one year or more you have the right not to be unfairly dismissed.
In order to dismiss fairly, an employer must:
- Have a fair reason for dismissal; and
- In dismissing the employee, must follow proper procedures; and
- The dismissal must be fair in all the circumstances.
Potentially fair reasons for dismissal include: capability; conduct,
redundancy. Illegality, retirement and some other substantial reason (which can include loss of confidence).
Once it is established that the dismissal falls within one of those potentially fair reasons, the fairness of the process of dismissal must also be considered. This will involve an assessment of (amongst other things):
For misconduct dismissals:
- Whether a reasonable investigation was conducted,
- If you were given the opportunity to present your case to your employer;
For poor performance dismissals:
- Whether performance issues were raised and discussed,
- If you were given an opportunity to improve,
- Whether the sanction imposed is appropriate to the error,
- If you have been treated the same as other employees who may have committed similar or the same errors;
For redundancies;
- Whether you were warned and consulted,
- Whether there was an objective and fair selection process,
- Whether alternative employment was considered
In most cases, we also have to consider whether the ACAS Code of Practice on Discipline and Grievance Procedures was followed.
There are also certain types of dismissal which are automatically unfair, such as dismissal for maternity reasons or due to whistleblowing. In these cases there is no minimum service requirement and sometimes no cap on the compensatory award.
If you have been unfairly dismissed, then you will usually be entitled to a basic award, and a compensatory award based on your losses.
A Tribunal will award the compensatory award with a view to compensating you for the time during which you are unemployed as far as it is just and equitable for them to do so. This will take into account the efforts you have made to find a job and any money received from your new employment. You can also apply for re-instatement but such orders are rare.
Time Limits
Claims for unfair dismissal/redundancy must be brought in the Employment Tribunal. Time limits are very strictly applied in an Employment Tribunal. Any claim must be brought in the Employment Tribunal within three months less one day of the date employment ended. This could be the date you are informed of it or if an immediate payment in lieu of notice is made.
Alternatively if you work out your notice period (or are on garden leave), the time may run from the end of the notice period. Where some form of appeal is allowed, you should pursue an appeal but please note that this time limit will no longer be extended even where an internal appeal procedure is ongoing.
You will also need to follow the ACAS Code of Practice on Discipline and Grievance Procedures (which can be downloaded from the ACAS website). This is aimed at assisting parties to resolve disputes within the workplace. If your claim is successful but the Tribunal considers that you have unreasonably failed to comply with the Code, your compensation could be reduced by up to 25%. (There are also penalties on the employer if they unreasonably fail to comply with the Code). Once again the time limit for bringing a claim is not affected by compliance with the ACAS Code.
Please note that time limits can be complicated and that you should seek prompt legal advice if you think you may have a claim. The sooner you seek advice the better.
Claims for breach of contract worth up to £25,000 can also be brought in the Employment Tribunal, within three months of the breach of contract. Please note that the Employment Tribunal only has jurisdiction to consider a breach of contract claim worth up to £25,000. High value claims for more than £25,000 in relation to contractual notice or relating to bonuses and other contractual claims for executives should be brought in the Civil Courts. The time limit is normally six years from the breach of contract.
Dismissal is upsetting but if you have any concerns about the terms you are being offered, it is worth seeking advice to ensure that all aspects of your employment have been considered and that you are leaving on the best possible terms. This can also include negotiating a reference.