As an employee, you have the right not to be dismissed unfairly. This means employers have to follow the correct procedure, or you may be eligible to make an unfair dismissal claim for compensation.
A dismissal could be deemed unfair if the employee was dismissed for a reason which was not fair, if the employer failed to follow a fair and lawful dismissal process or the employer failed to act reasonably in the circumstances.
Who can claim unfair dismissal?
Employees with two years’ service generally have the right to make a claim for unfair dismissal.
There are some reasons for dismissal that are automatically unfair, and where the two-year qualifying period does not apply. Examples include dismissal for:
- Whistle-blowing
- Trade union related reasons
- Asserting a statutory right
- Health and safety related reason
- Maternity related reason
- Taking time off for dependants or paternity or parental leave
- Asserting a right to apply for flexible working
If you can prove you were dismissed for an automatically unfair reason, your employer will not be able to present a defence to a tribunal that the dismissal was on fair grounds.
Seek professional legal advice if you are concerned whether your circumstances qualify for unfair dismissal.
Grounds for making a claim for unfair dismissal
An employee could decide to bring an unfair dismissal claim because they believe that:
- The reason given by their employer for the dismissal wasn’t the real one
- The employer dismissed them for an unfair reason
- The employer acted unreasonably
Before you can bring a claim for unfair dismissal, you first have to contact ACAS’ Early Conciliation service, within three months of your employment being terminated.
The time limit for making a claim should be extended to allow for the Early Conciliation process. The requirement for early conciliation applies for the majority of claims that can be made to a tribunal.
If Early Conciliation is unsuccessful or you do not wish to progress with this dispute resolution service, you will be issued an Early Conciliation certificate, which you use when making your tribunal claim.
What does an unfair dismissal claim involve?
To rebut a claim for unfair dismissal, the employer will have to show that:
- The principle reason for the dismissal was potentially fair.
- They genuinely believed that they had a good and fair reason for dismissal.
- They reasonably followed a fair procedure.
- That their decision to dismiss was a reasonable response in all the circumstances.
Factors which affect the reasonableness of an employers’ action include:
- The length of time during which the employee has been employed by them;
- The satisfactoriness or otherwise of the employee’s service;
- The difficulties which may face the employee in obtaining other employment;
- Treatment of other employees in similar circumstances;
- The investigation carried out;
- The hearing in a disciplinary matter;
The employer would also need to prove that the reason(s) for the dismissal were fair, by establishing any of the following potentially lawful reasons:
- Related to the capability or qualifications of the employee
- Related to the conduct of the employee
- Redundancy
- Where continued employment would involve the employee or the employer contravening a duty or restriction imposed by law
- Some other substantial reason
The employer’s decision must then must satisfy a test of fairness. If the employer has not followed a fair procedure, the decision to dismiss will be unfair even if there is otherwise a good reason for the dismissal and the employer’s error is purely procedural.
It is then for the tribunal to address the issue of whether the employer was reasonable to respond to the situation by dismissing the employee.
In order to terminate employment fairly the dismissal must be for one of the following grounds:
- Conduct
- Capability (including competence to do the job and ill-health)
- Redundancy
- Contravention of a statutory enactment
- Some other substantial reason
In order to dismiss an employee fairly, a fair procedure must be followed by the employer. Employers are advised to seek guidance prior to proceeding in order to minimise the risk of a claim being made or, if a claim is made, to be in a stronger position to defend it.
With regard to capability issues, generally speaking, a series of warnings should be issued (with a process at each stage which is compliant with the ACAS code – see below – being followed) over a period of time advising the employee of the particular shortfalls in their performance and any improvements required.
- Similarly, with regard to conduct which does not amount to gross misconduct, again, a series of warnings should be issued. The process at each stage should be compliant with the ACAS code.
- If the conduct is sufficiently serious then an employee could be dismissed for gross misconduct without any previous informal or formal warnings.
However, in such circumstances, it is still essential that a proper procedure (compliant with the ACAS Code) is followed which will often involve suspending the employee at the outset whilst a full investigation is carried out. Once the employee has been suspended they would then be invited to a disciplinary hearing but, employers are advised to seek advice should such a situation ever arise.
Unfair dismissal compensation
Technically, if an employee has been found to have been unfairly dismissed, the employer may be ordered to reinstate or re-engage the employee. In practice however, this remedy is rarely imposed since it is unlikely to be in the interests r wishes of either party.
In most cases, a successful claim for unfair dismissal will generally see the claimant awarded compensation.
Compensation is made up of:
- a basic award – related to statutory redundancy payments, depending on the employee’s age, gross weekly pay and length of service; and
- a compensatory award – reflecting the employee’s financial losses e.g. loss of salary, pension, and other benefits, capped at an index-linked maximum, but usually not exceeding the employee’s annual salary.
There are some exceptions to the limit to the compensatory award, including whistleblowing, and health and safety cases. In addition, there is no limit on the amount that can be awarded where the dismissal is related to unlawful discrimination (i.e. discrimination on the grounds of sex, race, disability, age, marriage and civil partnership, sexual orientation, gender reassignment, pregnancy and maternity and religion or belief).
Note that compensation for unfair dismissal is limited to financial losses only and, unlike in discrimination cases, no award can be made to compensate for injured feelings or distress caused by the manner of dismissal.
The employee is also under a duty to mitigate any loss by actively looking for new employment, which they must evidence to the tribunal to avoid any discretionary reduction in compensation.
The exception is where dismissed employees – particularly those with long service – often have no references from the employer who dismissed them and as such can justify a failure to secure employment.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
