DO YOU NEED AN UNFAIR DISMISSAL SOLICITOR?
Unfair dismissal occurs when an employee has been dismissed by his/her employer and believes that dismissal was unfair in some way.
In order to bring a claim for unfair dismissal, an employee must have been dismissed as defined by the Employment Rights Act 1996, which includes three categories of dismissal:
- termination by the employer;
- expiry of a limited-term contract; and
- constructive dismissal.
CAN I MAKE AN UNFAIR DISMISSAL CLAIM?
If you think that you have been unfairly dismissed there are certain criteria you need to meet in order to pursue an unfair dismissal claim in an Employment Tribunal:
- You must be an employee (not self-employed or working through an agency
- You must show you were dismissed
- You must have at least two years’ continuous employment
- You are in employment in Great Britain
- You submit the claim to an Employment Tribunal within 3 months less one day of the date of termination subject to the requirements for registration with ACAS for Early Conciliation prior to such expiry period and prior to the submission of a claim (ensure you take advice regarding compliance with limitation periods as they are very strict deadlines)
There are exceptions to the rule where the period of continuous employment (whether it is one or two years) is not required for some Unfair Dismissal claims. They fall into a category called automatic unfair dismissals. This means that the employer has a bigger hurdle to overcome when defending the claim. Common examples of automatic unfair dismissals are those relating to pregnancy or maternity, reasons connected with health and safety, whistle blowing and asserting a statutory right.
Once your claim is submitted, your employer will have the opportunity to respond to the claim within 28 days of receipt of the claim form from the Employment Tribunal.
WHAT IS THE PROCESS?
If a claim progresses to a final hearing, the employer will need to prove two things – that the reason for dismissal was a fair one and that it acted reasonably.
1. Potentially Fair Reasons
- Illegality e.g. you have lost your driving licence and your role requires you to drive
- Some other substantial reason (SOSR), e.g. business reorganisation, clash of personalities, third party pressure.
If a fair reason can be established the Tribunal will then consider whether the employer acted reasonably in relying on that reason to dismiss. They will consider the size and resources of the employer and will evaluate how other employers in the same or similar circumstances would have dealt with the situation. This is called checking the “band of reasonable responses”.
In cases of alleged automatic unfair dismissal the second part of the test (reasonableness) is not considered by the Tribunal therefore making it harder for the employer to show the dismissal was fair.
UNFAIR OR FAIR?
If after analysing all the facts and applying the relevant law the Tribunal thinks that no reasonable employer would have dismissed the employee for the reason provided, the dismissal will be unfair in law and the employee will be entitled to compensation.
However, if the Tribunal decides that some employers might have dismissed in those circumstances, the dismissal will be fair and the employee will have lost his/her claim.
WHAT IS THE COMPENSATION FOR SUCCESSFUL UNFAIR DISMISSAL CLAIMS?
Assuming you are successful you will need to know how your compensation will be worked out by the tribunal. There are many factors that the tribunal will take into account when deciding how much you should receive.
Compensation for an unfair dismissal claim is made up of two components:
- a basic award – calculated like a redundancy payment – ie based on age and length of service
- a compensatory award – based on the actual financial loss that can be attributed to your employer.
There is a limit on a week’s pay, used to calculate redundancy payments or for the basic award for unfair dismissal compensation. There is also a maximum award for unfair dismissal.
The limit of each of these awards vary from year to year.
The compensatory award varies, but is based on the loss that you can prove you suffered because your employer dismissed you. Your loss will be the difference between what you would have earned (including overtime, bonuses, pension and any other benefits) and any new income that you earn or receive after your dismissal.
The loss will be calculated up to the date of the hearing of your case and there will normally be an allowance for a period of future loss as well, if you haven’t already found another job that pays roughly the same.
The tribunal will certainly expect you to do everything you can to reduce (or ‘mitigate’) your loss by securing another job. Therefore, it is vital to retain all evidence (job applications) of efforts made to secure alternative employment from the date of dismissal. It will also take into account any social security benefits and other income that you may have received.
An uplift or a decrease in the compensation may also be awarded in accordance with the ACAS Code of Practice depending on the circumstances of the case. In addition, further deductions may be applied.
FACING A DISCIPLINARY MEETING?
Visit our page on Disciplinary Hearings to find out what to expect.