Unfair Dismissal

If you have been forced out of your job or been released unreasonably, then in the law’s eyes you could be the victim of unfair dismissal.

If you take your case to an Employment Tribunal you may be awarded compensation.

As of the 1st of February 2013, the maximum compensatory award for most claims for unfair dismissal is £74,200, as long as the dismissal in question took place on or after that date. The dismissal amount for 2012 was £72,300 so earlier cases will cap out at this sum. An additional award that takes the total sum awarded beyond the statutory cap can be made if an employer does not comply with an Employment Tribunal’s order.

What is unfair dismissal?

A dismissal could be considered unfair if:

a) Your employer did not have a potentially fair reason for dismissing you and;

b) The employer did not act reasonably in treating that reason as sufficient to justify the dismissal. In order to act reasonably the employer should have followed a fair procedure when dismissing you.

A limited number of dismissals will be considered automatically unfair - for example, being dismissed for reasons associated with pregnancy.

What is constructive dismissal?

A constructive dismissal is where an employee terminates their own employment (i.e. resigns) and can show they were entitled to do so as a result of conduct on behalf of their employer.

In cases of constructive dismissal, the unreasonable behaviour of the employer must amount to a fundamental breach of contract. This can include:

  • harassment, humiliation or victimization of members of staff
  • unreasonable alteration of the employee’s job specification or contract terms without consultation
  • changing of the job location at short notice
  • excessive disciplinary actions such as demotion for no reason

Can I claim for unfair dismissal?

There are a number of criteria that you must meet in order to make a claim for unfair dismissal.

Does your employment status entitle you to unfair dismissal rights?

The definition of an employee is someone who serves their employer under a contract of employment, which can be written or oral. Through this contract the employer will be paying the employee regular wages, giving them specific tasks to do, and furnishing them with the necessary tools for their job.

Only employees can proceed with a claim for unfair dismissal.  Those classed as 'workers' or those who are self-employed are not eligible to make an unfair dismissal claim.

Have you been employed long enough?

In most circumstances, you must have completed a minimum period of service with your employer to be able to proceed with an unfair dismissal claim.

If your employment commenced before 6th April 2012, then you require one year of continuous service to order to be eligible to make an unfair dismissal claim. If your employment commenced on or after this date, you require two years of continuous service to make the claim. Holiday or leave (sick or maternity) for this purpose are not considered breaks in continuity.

There are some circumstances where these periods of qualifying service are not necessary. Generally these are where the reason for dismissal falls within one of the categories of automatically unfair dismissals. Examples include pregnancy-related dismissals and dismissals for trade union membership.

Have you been dismissed?

Remember that even if you resigned from your job, it still may be classed as a dismissal if you were forced out by unreasonable behaviour. This is constructive dismissal (see above).

The end of a fixed-term contract without offer of renewal is also considered a dismissal.

Are you in an excluded category or out of time?

There are certain categories of worker to which unfair dismissal claims may not be open, such as policemen, share fishermen or members of the armed forces.

Any claim must be made within 3 months less one day of the day of dismissal. Your claim is unlikely to be considered if you fail to abide by this time limit. You must be sure to submit your application to the Employment Tribunal within the time limit, even if you are in the midst of your company’s own appeal procedure.

If you are given notice then the 3-month claim window opens when your notice period finishes. If you are paid in lieu of notice, the 3 months start from the date of the dismissal. When dismissed without notice, the 3 months run likewise from the date of the dismissal.

Was your dismissal fair?

It is the responsibility of your employer to demonstrate that there was a potentially fair reason for your dismissal.

By law there are a number of categories of reasons for dismissal which are classed as either automatically unfair, or potentially fair. Some examples include:

Automatically Unfair

a) dismissal which relates to trade unions – it is automatically unfair to dismiss an employee for reason relating to their involvement with trade unions

b) unfair selection for redundancy - dismissal on the grounds of redundancy, which usually is potentially fair, becomes automatically unfair if the employee was chosen for redundancy for a reason which on its own would make the dismissal automatically unfair

c) dismissal of pregnant employee – it is automatically unfair to dismiss a member of staff for reasons connected with pregnancy, childbirth or statutory maternity leave.

Potentially Fair

a) capability or qualification – it is potentially fair to dismiss an employee who is incapable of performing their job either through ill health or incompetence. Likewise if the employee is found to not have the necessary qualifications for the job

b) conduct – where the dismissed employee has been guilty of a misdemeanour. This may be a single serious act of misconduct or a series of less serious acts.

c) statutory restriction – where it would be illegal to continue to employ the employee.

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

e) "some other substantial reason" – this covers other reasons for which a company might wish to dismiss an employee and is used by employers as a “catch-all” provision for potentially fair reasons not covered in the above categories.

Did your employer use a fair procedure?

ACAS provides employers with a model disciplinary procedure which should be followed. It is often used as a reference at Employment Tribunals. Although employers are not obliged to adhere to it, if they fail to do so, any award for a successful claim for unfair dismissal may be increased by up to 25%.

There is a general expectation on employers to carry out a thorough investigation into every case and give the employee ample opportunity to put forward their side of the story before dismissing them. An employee should always be able to appeal whatever decision is taken.

Sources of advice on unfair dismissal

When considering making a claim for unfair dismissal, proper legal advice is invaluable. We offer a service providing unlimited legal advice over the telephone which could help to guide you through the process.

In England, Scotland and Wales, the Advisory, Conciliation and Arbitration Service will offer advice on employment relations issues, including unfair dismissal and constructive dismissal. If you are a worker in Northern Ireland you should contact the Labour Relations Agency (LRA) who also offer free, confidential and impartial advice on all employment rights issues.

Another good source of free impartial advice is the Citizens' Advice Bureau. You can find your local CAB in the phone book or online.

Lastly, your trade union, if you belong to one, will be able to offer you advice and support.  

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