Unfair Dismissal

Fair and Unfair Dismissals: A Guide

Fair and Unfair Dismissals A Guide

What is Dismissal?

Dismissal is when your employer terminates your employment. The employer must provide a valid and justifiable reason for dismissal. They must be consistent with their dismissal practices and investigate fully before dismissing an employee. In some situations, employers have the right to dismiss an employee immediately.

Usually, employers must give notice. This notice period will either be agreed in your contract or the statutory minimum. Read this guide on fair and unfair dismissals to find out if your dismissal was unfair. Call ACAS (the Advisory, Conciliation and Arbitration Service) on 0844 826 8380 if you need further advice and assistance.

Fair Reasons for Dismissal

There are many reasons why an employer can dismiss their employees fairly. Most common is because you are unable to do your job properly. This might be because you aren’t keeping up with changes to the role, like new computer systems. Maybe you have problems with your co-workers. In cases like this, the employer should take disciplinary action and give you a chance to improve before dismissing you. For example, they should give you a warning about the standard of your work or behaviour. They should also offer training to help you improve in this area.

Another reason why you can no longer work well enough could be due to long-term illness. Your employer should support you and allow time for recovery before considering dismissal. They can dismiss you fairly for statutory restrictions which affect your ability to work legally, such as losing your driving licence. Employers can dismiss you for refusal to agree to employment terms, for gross misconduct, or if you go to prison. They may select employees for redundancy or cease to employ the whole workforce if it becomes impossible, perhaps due to the loss of a workplace.

Automatically Unfair Dismissal

If your dismissal is unfair, you may be able to take legal action against your employer. Dismissal is usually unfair if your employer does not have a valid reason and/or does not follow the company or statutory disciplinary and dismissal processes. If an employer dismisses an employee for any of the reasons below, it is likely that they are automatically unfair dismissals. It is unfair for your employer to end your employment as a result of you:

  • asking for more flexibility or refusing to give up your legal rest breaks
  • resigning from your job and giving the required notice period
  • joining a trade union or taking part in industrial action for less than 12 weeks
  • taking time off for jury duty
  • being on or intending to go on maternity, paternity, or adoption leave
  • enforcing your rightful receipt of Working Tax Credits
  • being a whistleblower (exposing wrongdoing in the company)
  • having to take “compulsory retirement”

Another form of dismissal is “constructive” dismissal. This occurs when an employee resigns as a result of the employer’s misconduct. There must be a serious reason for this.  Examples include sudden demotion or lack of pay, forcing you to work hours outside of your contract, or allowing harassment towards you at work. The reason can be one incident or a group of smaller incidents which are serious altogether. You must try to resolve this with your employer before resigning.

What Can I Do After Unfair Dismissal?

If an employer threatens dismissal or actually dismisses you, then you should get help to resolve the problem. If you are a member of a trade union, then speak to a representative for assistance. Go to an employment tribunal if you cannot resolve an issue between you and your employer. In Northern Ireland, this is an industrial tribunal. You must make an unfair dismissal claim to the employment tribunal within three months of the dismissal if you want compensation.

Only those who qualify can make claims for unfair dismissals at an employment tribunal. Your status must have been as an employee and not a worker. There is a minimum period you have to work for your employer before you can claim unfair dismissal. Previously, this was one year. From 6th April 2012, the minimum working period is two years. In Northern Ireland, it is still one year. You have the automatic right to go to a tribunal after dismissal for political affiliation.

Unfair Dismissals Claims

Before making a claim to an employment tribunal, contact ACAS on 0844 826 8380 to tell them you are doing this. They will offer you the chance to settle without going to court through their “Early Conciliation” service. The time this takes does not affect your three months to claim. You will need an Early Conciliation certificate before you can make your claim to the employment tribunal. Once you have this, you can make your claim online.

After you make the claim, the respondent (your employer) has 28 days to respond to it in writing. The tribunal will then decide if there should be a full hearing. If there is no reply, the tribunal might make a decision without a hearing. You may have to attend a preliminary hearing where the judge will decide which parts of your claim to pursue and when a full hearing will take place. You should organize documents and witnesses to help your case.

Normally, you will present your case at a hearing at the closest employment tribunal office to the workplace. The respondent will also present their case against you. For unfair dismissal cases, the employer will go first. The judge, the respondent, and other tribunal members can ask questions. You will receive the decision from the tribunal by post in the days or weeks after the hearing. In some cases, the tribunal may give their decision at the hearing itself.

Compensation for Unfair Dismissal

If you lose your claim, write to the Tribunal Office within 14 days asking them to reconsider. There must be a valid reason for this, such as a mistake at the tribunal or new evidence. You must write to the Tribunal Office responsible for your case. Submit a “notice of appeal” within 42 days using the related guidance. The respondent can also make an appeal against the decision if you win.

If you win your claim, the tribunal can order your employer to take certain actions. They could give your job back, give you a different job, or pay compensation to you. The amount they will have to pay you depends on your age, the length of your employment, and your salary. If they do not pay you within 28 days of the payment notice, you can get the tribunal to enforce the penalty.

The compensation for unfair dismissal will usually consist of a basic award and a compensatory award. The basic award is a statutorily fixed sum, and the compensatory award makes up for any money you lost due to losing your job. The cap for compensatory awards is currently £80,541. If you earn less than this in a year, the tribunal can only award you a maximum of one year’s gross pay. This applies to dismissals from 6th April 2017. If you receive welfare benefits between the dismissal and the tribunal hearing, they will deduct this amount from your compensatory award.