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Unfair dismissal - Primer

Unfair dismissal - Primer

Want to learn more about the law relating to unfair dismissal? Click here for a range of bite-size advice
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If you’ve been unfairly dismissed then you may be entitled to compensation for any losses you have incurred. There’s a strict 3-month time limit from the date of your dismissal to submit a complaint to the Employment Tribunal so you shouldn’t delay dealing with your claim.

There are two ways that you can deal with your unfair dismissal claim:

  1. Undertake the claim yourself as a “Claimant in person”
  2. Instruct a specialist employment solicitor to deal with your claim
There are benefits and costs to pursuing either approach. Undertaking the claim yourself can be cheaper than instructing an experienced specialist employment lawyer. Further, if your claim is a simple one and you have the time to deal with the case then it may be worth your while doing so.  However, many lawyers now pursue claims in the Employment Tribunal on a “no win no fee” basis, so it is recommended that you at least consider instructing a solicitor on such a basis. Further, the benefit that experienced legal advisers is that they are, well, experienced. They generally substantially improve your chances of dealing with the claim efficiently and, most importantly, winning.

The following is a very brief outline of the law relating to unfair dismissal. Although not a comprehensive analysis, these are the kind of questions that you should be looking to ask yourself to evaluate whether you have a potential claim for unfair dismissal.

1. Have you been dismissed?

This may seem like an obvious question but can be important. If there is a dispute as to whether you’ve been dismissed or not then it may affect not only the legal principles that relate to your claim but also the tactics that you use throughout the claim.

2. Have you been dismissed from your employment for a potentially fair reason?

There are only 6 potentially fair reasons for terminating someone’s employment. However employers will often attempt to assert that one of these reasons applies when in fact it does not.

These potentially fair reasons are:-

  • Capability – if an employee does not have sufficient qualifications to do the job or are deemed to be incompetent
  • Conduct – sometimes the employee’s conduct gives the employer good reason to dismiss. This would include theft, fighting, abusive behaviour etc. If the misconduct is serious enough then it may amount to gross misconduct. In some circumstances, it may include misconduct that took place outside of employment.
  • Redundancy – if the employer’s business (or part of it) has ceased to operate or has moved to a different place or if the needs of the business have changed, there may be a genuine redundancysituation. In such cases, it may be fair to terminate the employment.
  • Breaking the law – if it would be against the law to continue someone’s employment, for example where a driver loses his licence, it may be fair to dismiss.
  • Retirement – if you have reached retirement age, your employer can dismiss you fairly as long as a fair procedure is followed.
  • Any other substantial reason – this is very wide and covers a number of employment related reasons, not included above. These would include a business restructure, an employee’s refusal to use computers and in some cases, a personality clash.

3. Did the employer follow an unfair procedure?

Even if the termination of your employment was for a potentially fair reason, the dismissal may be unfair if the employer did not follow a fair procedure.

A fair procedure should, at the very least, include the following:-

  • The employer should carry out a reasonable investigation before making a decision;
  • The employer should arrange a disciplinary hearing at which the employee is given the opportunity to state their case;
  • The employee should be notified of the hearing and the reasons for the hearing in writing;
  • The employee should be given the right to bring a colleague to the hearing;
  • The employer should consider other lesser forms of discipline;
  • The employer should notify the employee in writing of the termination of employment and the reasons for it.
  • The employee should be notified of the right to appeal against the decision.

4. Did your employer make a fair decision to dismiss you?

As well as looking at the procedure involved in dismissing you, an employment tribunal will look at whether it was fair to dismiss you on the basis of the allegations that had been put to you. The employment tribunal will therefore apply the following test to determine whether the decision to dismiss you was fair: was your decision within the range of reasonable responses that your employer could have taken in the circumstances? If the answer to this question is yes then your dismissal is likely to have been unfair, whereas if the answer to the question is no then you may have been unfairly dismissed.

5. What compensation can you be awarded if you are unfairly dismissed?

If you have been unfairly dismissed from your employment, you should be entitled to compensation. This is made up of a basic award and a compensatory award

The basic award is determined by your age and length of time you have been in employment. It is calculated in much the same way as a redundancy payment.

The compensatory award is intended to compensate you for loss of employment, that is the financial loss resulting from the dismissal. This includes loss of wages up to the date of the Employment Tribunal hearing, as well as future losses. The compensatory award is subject to a maximum statutory cap, currently one year’s wages or £76,574, whichever is lower.

Your compensation can be reduced if you, for example, fail to mitigate your losses or are at fault for your dismissal (among other reasons).

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