Unfair Dismissals

Employment law and redundancy rights

If you have recently left your job and feel that your employer acted unreasonably in ending your employment, or if you feel that you were forced out, then it is possible that you were the victim of unfair dismissal.

If that is indeed the case, then you may be entitled to take an unfair dismissal claim to an Employment Tribunal and be awarded compensation.

The current maximum compensatory award for unfair dismissal claims is £65,300 plus £11,400 for the basic award (as of 01/02/2010).

What is unfair dismissal?

There are several instances where dismissal could be deemed unfair and they usually fall into the following categories:

• Your employer did not have a good reason for dismissing you.
• Your employer did not follow the correct procedure when dismissing you and/or acted unreasonably.
• You were dismissed for an automatically unfair reason, e.g. maternity leave.

What is constructive dismissal?

Constructive dismissal is another form of unfair dismissal whereby the employee feels compelled to resign from their job due to their employer’s behaviour.

Generally, the actions of the employer must amount to a fundamental breach of contract and can include:

• harassing, humiliating or victimising particular members of staff
• altering the employee’s job specification or contract terms without consultation
• changing the job location at short notice
• excessive disciplinary actions such as demotion
• falsely accusing an employee of misconduct

Can I claim for unfair dismissal?

To be entitled to make an unfair dismissal claim and eventually go to an employment tribunal, there are certain conditions that must apply to your employment circumstances and the manner in which you were dismissed.

Does your employment status entitle you to unfair dismissal rights?

An employee is a person who works under a contract of employment for his/her employer, whether this is a written or oral contract. Such a contract will usually involve (amongst other things) the employer paying the employee regular wages, giving the employee specific tasks to do, and providing them with the necessary tools and equipment for their job.

A person who is self-employed cannot claim for unfair dismissal. It is generally easy to establish whether you are an employee, but there are occasions when someone may consider themselves to be an employee (e.g. their employer deducts tax and National Insurance contributions from their salary) but an Employment Tribunal will decide that they are in fact self-employed.

If you think you can answer YES to this question, you should proceed further in making a claim for unfair dismissal.

Have you been employed long enough?

You must have at least 1 year's continuous employment with your employer to qualify. Holiday, maternity leave or sick leave do not break the continuity of employment.

If you think you can answer YES to this question you should proceed.

Have you been dismissed?

Generally it is pretty clear whether or not you have been dismissed from your job, but there are occasions where an employee may have chosen to leave but the Employment Tribunal will still accept that they have been dismissed. This is called a constructive dismissal. To establish that you have been constructively dismissed, the employee needs to show that they left as a result of a "fundamental breach" of their contract by their employer - examples may be where an employer refuses to pay wages or asks an employee to do something which is illegal.

If you are on a fixed-term contract and this expires, then this is a dismissal unless the contract is for more than one year and, in the contract, the employee has agreed to forgo this right.

If you think you can answer YES to this question you should proceed.

Are you in an excluded category or out of time?

As well as being below retirement age, you must normally work in the UK. The law does not apply to policemen, dock workers, share fishermen or domestic servants.

You must also bring your claim within 3 months of the date of your dismissal. This is an absolute time limit and applications outside the 3-month limit are rarely accepted. You must therefore submit your application to the Employment Tribunal within the time limit, even if you are still going through your company's complaints procedure.

The 3-month limit starts the same day that your notice period ends, if you are given notice (whether you are required to work it or not). However, if you are paid in lieu of notice, the 3 months starts from the date of the dismissal. If you are dismissed without notice, the 3 months again runs from the date of the dismissal.

If you think you can answer NO to this question, you should proceed.

Was your dismissal fair?

If you have got this far then the penultimate question is "Was your dismissal for a fair reason?" If it was not then you may have a claim for unfair dismissal. It is up to the employer to show that the reason for your dismissal was at least potentially fair.

The legislation lists a series of categories of reasons for dismissal which are either automatically unfair, or potentially fair. There are a few circumstances which are automatically fair.

Automatically Unfair

a) dismissal which relates to trade unions - membership, taking part in activities, refusal to become a member.

b) unfair selection for redundancy - normally dismissal on the grounds of redundancy is potentially fair (see below). However it becomes automatically unfair if the employee was selected for redundancy for an inadmissible reason, or in breach of an agreed procedure such as "last in - first out".

c) dismissal of pregnant employee - it it is automatically unfair to dismiss a female employee because she is pregnant, or for any reason connected with her pregnancy, unless her pregnancy renders her incapable of doing her normal work and there is no other suitable work that can be offered to her.

If the dismissal is automatically unfair then you may have a potential claim for unfair dismissal. Consult a specialist employment law solicitor via our free Find a Solicitor service.

Potentially Fair

a) capability or qualification - dismissal of an employee who is incapable of performing their job either through ill health or incompetence is potentially fair. As is dismissal if it transpires that the employee does not have the necessary qualifications for the job.

b) conduct - this includes quite an extensive range of circumstances including theft, fighting, bad time-keeping, taking drugs or being drunk at work, abusive behaviour, and accessing the internet for personal use.

c) breaking the law - any situation where continuing to employ the employee would be illegal.

d) redundancy - dismissal on the grounds of redundancy is potentially fair, provided the employer follows a fair procedure for selection.

e) "some other substantial reason" - almost any other reason you can think of - from not getting on with your colleagues through "sound business reasons", to refusal to reorganise along with others. This is a "catch-all" provision which is frequently used by employers

If you think the dismissal is potentially unfair you should proceed.

Did your employer use a fair procedure?

The procedural requirements will vary from case to case, but a model disciplinary code of conduct has been put forward by ACAS (link below) detailing procedures which ought to be followed. This is frequently referred to in Employment Tribunal procedures, but does not need to be slavishly followed by employers. In general employers need to thoroughly investigate a case and give the employee an opportunity to put their side of the situation before dismissing them. Employees should also be entitled to appeal any decision. The importance of following a fair and reasonable procedure before dismissing is essential for employers.

In all cases of unfair dismissal, getting specialist legal advice from an employment law solicitor is advisable. Our free Find a Solicitor service can help you get the right legal advice at the right price, today.

In addition, The Labour Relations Agency (LRA) offers free, confidential and impartial advice on all employment rights issues.

Citizens' Advice can provide free and impartial advice. You can find your local CAB office in the phone book or online.

If you are a member of a trade union, you can get help, advice and support from them.