Unfair Dismissal

Unfair Dismissal Legislation

The legal provisions for protection against unfair dismissal are contained in the Employment Rights Act 1996 (ERA 1996). The legislation provides that a qualifying employee can bring a claim for unfair dismissal in the employment tribunal unless the employer can provide a potentially fair reason for dismissal and demonstrate that they acted procedurally fairly during your dismissal.

This means that your dismissal is likely to be unfair if:

  • Your employer does not consider reasonable alternatives to dismissing you, such as demotion, training, warnings, etc;
  • Your employer does not treat you consistently with other employees. For example if you are dismissed for failure to meet a deadline, but other colleagues are not;
  • You are denied the right to be accompanied by a Trade Union representative or a work colleague to a hearing relating to your dismissal; or
  • Your employer does not follow a fair procedure before dismissing you. For example by providing you with details of why you are being dismissed.

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To bring a claim for unfair dismissal you must have been dismissed. In summary, to have been dismissed means that you must have been either:

  1. been actually dismissed (or “sacked”),
  2. been constructively dismissed (see Constructive Dismissal), or
  3. been employed under a fixed-term contract which has expired (see Wrongful Dismissal).

Who can bring a claim for unfair dismissal?

qualifying service.

If you employment started before 6 April 2012, then you must have at least one year’s service to bring a claim for unfair dismissal. However, if your employment started after 6 April 2012 , will need two years’ qualifying service before you are entitled to bring a claim.

The ERA 1996 (Section 230 (1)) defines an employee as

an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

A contract of employment is defined as a

contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

Potentially Fair Reason

Unless your employer can show a potentially fair reason for the dismissal, it will be unfair.

There are 5 potentially fair reasons for dismissal:

  1. Conduct;
  2. Capability
  3. Redundancy;
  4. Breach of a statutory restriction; and
  5. “Some other substantial reason” (SOSR).

Was my dismissal procedural fair?

Unless your employer can demonstrate that your dismissal was procedurally fair, then you may bring a claim for unfair dismissal. For a dismissal to be procedurally fair it should follow the The Acas Code of Practice on Disciplinary and Grievance Procedures (The Acas Code). Also, your employer must comply with its own policies and procedures before dismissing you.

Procedurally, you are entitled to:

  • details of the reason your employer is considering dismissing you;
  • a hearing so that you can state your case before any decision is taken to dismiss you; and
  • a right to attend an appeal hearing. You should also be treated consistently with other similar cases and you are entitled to be accompanied to any formal disciplinary hearing.

Burden of Proof

In a claim for unfair dismissal, the only thing that you need to show is that you were dismissed by your employer, either constructively (see Constructive Dismissal) or expressly.

Once you have established that they were dismissed, the burden of proof then passes to you employer. At this point your employer must establish:

  • The reason for the dismissal. Only the facts known to your employer at the time of the dismissal will be taken into account; and
  • That, on the balance of probabilities, the reason for the dismissal falls within one of the five potentially fair reasons for dismissal.

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When do you need to bring a claim for unfair dismissal?

To claim for unfair dismissal you must submit your claim to the employment tribunal within three months of your dismissal. Therefore it is imperative to take stock of your legal position and to obtain legal advice on an urgent basis.

The three month time limit can only be extended where the employment tribunal is satisfied that it was “not reasonably practicable for the complaint to be presented before the end of that period of three months”. However, the claim must still have been presented “within such further period as the tribunal considers reasonable” in order for an extension to be granted.

How much can you claim for?

As we have discussed above, the most common type of remedy for an unfair dismissal claim is compensation.

Your unfair dismissal claim is likely to be subject to a maximum amount of compensation that can be awarded to you.

There are two types of compensation in unfair dismissal claims:

  • the basic award; and
  • the compensatory award.

How much can you claim for?

This is a fixed amount which you can claim for in your unfair dismissal claims. The basic award is based on gross weekly wage, however, it is subject to a maximum of £430 per week.

The figure what you claim for as a basic award is calculated in the same way that statutory redundancypayments are calculated.

The compensatory award

The compensatory award takes into account a number of factors which aim to calculate the actual losses that your unfair dismissal has caused you. The aim of the employment tribunal is to provide you with a compensatory award which is “just and equitable” based on the circumstances.

The compensatory award is subject to an overall maximum which is £72,300 (for dismissals from 1st February 2012).

The first element of the compensatory award is to compensate you for the actual losses caused by your unfair dismissal from the date of your dismissal to the date of any employment tribunal hearing. The compensatory award considers the net weekly pay and benefits that you received at the time of your unfair dismissal. This figure is then multiplied by the number of weeks from your unfair dismissal to the date of any employment tribunal hearing. The resulting figure provides you with your actual losses (minus any income you have received during the period).

The second element of the compensatory award is to work out the future losses that you will suffer as a result of your unfair dismissal. Generally, an employment tribunal will make future loss awards reflecting 6-18 months of lost earnings, dependant on the facts. For example, if you have been dismissed from a senior and specialised role it may take you longer to find equivalent work, therefore an 18 months future loss award may be appropriate. However, if you are employed in a role that is popular and regularly recruits then the future loss award may be 6 months.

The final element of the compensatory award is to compensate you for any expenses you have incurred in looking for new work. This aspect of the compensation is generally minimal in comparison with the other element that can be awarded.

It is important to remember that the employment tribunal will base any compensatory award on the facts. Importantly, you are under a duty to try to mitigate your losses as soon as you are dismissed. This means that it is important that you apply for new jobs as soon as possible after your dismissal, and is possible, begin to generate an income. Any income you generate from your unfair dismissal will be deducted from the total amount of compensation you may receive. If you fail to mitigate your losses the employment tribunal can reduce the amount of compensation awarded to you.

Can I claim for Unfair Dismissal?

If after reading this article you believe you can make a claim for unfair dismissal, contact us today by the contact form on the right hand side of this page or on the Contact Us page.