Unfair Dismissal

Unfair dismissal occurs when an employee has been dismissed and claims against their employer that the decision to dismiss was unfair. If you feel that you have been unfairly dismissed there are certain criteria you need to meet in order to pursue an unfair dismissal claim:

You must be an employee (not self-employed or working through an agency)
You must show you were dismissed
You must have at least one year's continuous employment *

You are in employment in Great Britain
You submit the claim to the Employment Tribunal within 3 months less one day of the dismissal date

*There are some unfair dismissal claims that do not require a year's service. They fall into a category called automatically 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, whistleblowing and asserting a statutory right.

Test within the claim

To defend a claim of unfair dismissal your employer must first prove that the reason for dismissal was a potentially fair one in law. These reasons are –

Your capability
Your Conduct
Redundancy
Illegalitye.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.

Depending on the Tribunal's interpretation of the evidence the dismissal will be fair or unfair. If the dismissal is unfair they will proceed to consider compensation.

Compensation

If successful in your claim you will receive compensation for loss of earnings and benefits.The award is made up of two elements – the basic award and the compensatory award.

Basic Award

This is calculated by taking into account your length of service at the effective date of termination, your age at the time of the dismissal and a multiplying factor.

If your employer offers to reinstate you and you refuse unreasonably then this award can be reduced. Equally if you receive a redundancy payment this will be offset against the basic award.

Compensatory Award

This cover’s the loss of net wages from dismissal up to the date of the tribunal hearing, future loss of net wages beyond the hearing and the loss of associated benefits such as loss of car, heath benefits, share options and pension, and loss of employment protection. It will not include stress, upset or hurt feelings.

If you receive any payments from the Employer on dismissal such as notice those amounts must be offset against the award. Likewise if you find new employment your new earnings must be deducted to avoid double recovery of money. It is considered a duty in law to find new work as soon as possible and if an employee does not make any efforts to secure work he/she will be penalised by the Tribunal and the compensatory award could be reduced anyway.

The award can also be reduced if –

The employee's conduct prior to the dismissal contributed to that dismissal.
The employer discovers after the dismissal that the employee was guilty of some serious misconduct other than that which he/she was dismissed for.

In addition the Tribunal will also consider the ACAS code of practice and whether the dismissal was carried out in compliance with it. If it was not the Tribunal can increase the compensation awarded if successful by up to 25%.

For further information on this and any other employment issue please use our enquiry form