What is “unfair dismissal”?

Unfair dismissal is, you’ll be unsurprised to read, what occurs if your contract is terminated (also know as being “dismissed” or “fired”) unfairly at your employment. Under s.94 of the Employment Rights Act 1996 you have the right not to be unfairly dismissed from your employment.

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When does a dismissal take place?

Determining the date of the termination of your contract of employment is important to accurately find out what your “Effective Date of Termination” is. This, in turn, affects what the limitation date of your unfair dismissal claim is.

In most cases the date of the termination is pretty clear. There are three circumstances in which your contract of employment can be terminated:

  1. Your employer terminates your contract of employment (with or without notice)
  2. You terminate your contract of employment (i.e. resign) (with or without notice)
  3. Your fixed-term contract comes to an end

Although the position, as stated above, is usually clear, there can be circumstances in which the date of termination – and even whether the contract itself has been terminated – is complex. The wording of the dismissal can be ambiguous, your employer may later retract the dismissal, or there may be confusion as to the exact date on which the contract of employment has been terminated.

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What is the law relating to unfair dismissal?

As mentioned above, your right not to be unfairly dismissed is contained in the Employment Rights Act 1996. There are two “branches” contained within unfair dismissal: substantive unfair dismissal and procedural unfair dismissal.

If your dismissal is substantively unfair this means that your employer has failed to make a decision that was within the reasonable range of responses in dismissing you. Generally, for the dismissal to be substantively unfair your employer has to fail to fulfil one or more of the following criteria: a failure to carry out a reasonably thorough investigation, a failure to have a reasonable belief in the reason for your dismissal, and/or a failure to have an honest belief in the reason for your dismissal.

If your dismissal is procedurally unfair this means that your employer has failed to carry out a proper or reasonable process in dismissing you. This normally involves some breach of the ACAS Code of Conduct (although this is not binding on employers) and examples can range from a failure to carry out a disciplinary procedure at all to a failure to discipline staff members consistently (such as dismissing one staff member but only giving another an informal warning if their situations are comparable).

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What is the maximum basic award?

As of February 2012 there is currently a maximum basic award of £430.

Click here for a run-down of the most recent maximum basic awards.
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What is the maximum compensatory award for an unfair dismissal claim?

As of February 2012 there is currently a maximum compensatory award of £72,300 (£85,200 including the basic award).

Click here for a run-down of the most recent maximum compensatory awards.

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How is compensation calculated in an unfair dismissal claim?

Compensation in a claim for unfair dismissal is divided up into two elements:

  1. The Basic Award – this is calculated with reference to a set formula which utilises the number of years service that you’ve had at your employer, your gross weekly wage (capped at £430 currently),  and your age. Use this site to calculate your basic award.
  2. The Compensatory Award – the compensatory award is subdivided into the “Prescribed Economic Loss” and “Continuing and Ongoing Loss” sections. You can only be compensated for pecuniary loss in an unfair dismissal claim (unlike discrimination claims where you are entitled to claim non-pecuniary loss such as injury to feelings).

The “Prescribed Economic Loss” section deals with losses of net wages from the date of your dismissal until the date that you find a new job (if the net earnings in your new job are higher than those in your old job) or until the date of the Employment Tribunal (if you haven’t been able to find a new job or if your new job pays less than your old job).

The “Continuing and Ongoing Loss” section deals with loss of contractual benefits and loss of statutory rights as a result of your being dismissed. In this section you can claim (if entitled to) contractual benefits such as the right to

You have a duty to mitigate your loss in an unfair dismissal claim. You can mitigate your loss by, for example, finding new employment. If you fail to find new employment for a period of time or at all then you must produce evidence to show that you have attempted to find employment. Such evidence can include your Job Centre application sheet, copies of applications to various employers, and/or copies of correspondence with potential employers. The important thing, though, is to have enough evidence to convince an Employment Judge that you have been proactive in trying to mitigate your loss.

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Who can claim unfair dismissal?

Employees with more than one year’s continuous service can claim for “normal” unfair dismissal. In certain cases, such as automatic unfair dismissal cases, this time period doesn’t apply.

So, how is an “employee” defined? You must have a contract of employment. Your contract of employment can be written or oral, although it is always preferable if the contract of employment is in writing.

There are two general types of contracts of employment – contracts of service and  contracts for service. An employee is a person who has a contract of service with his or her employer. If you have a contract for service then you will be defined as a “worker” and will not merit the protection that the Employment Rights Act 1996 affords. Whether you have a contract of service or a contract for service depends upon whether you meet the three-prong test utilised to determine your status: if there is sufficient mutuality of obligation, control, and obligation to provide personal service to your employer then you may be deemed to be an employee rather than a worker.

This is an important point: employers often attack the employment status of Claimants as a means of undermining their claims/

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When can I claim unfair dismissal?

You can claim unfair dismissal if you’ve either been fired from your job, if you have been compelled to resign because of your employer’s conduct (constructive unfair dismissal), or if your fixed-term contract has expired and hasn’t been renewed.

You must ensure that you submit your claim for unfair dismissal to the relevant Employment Tribunal within 3 months less 1 day of the date you left your employment. For example, if you were dismissed on the 29 January 2012 you have until 28 April 2012 to submit a claim for unfair dismissal. Should you fall outside of this time period it becomes quite difficult to provide a reason (unless you have a sufficiently good one) to the Employment Tribunal to extend the time period.

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How do I make a claim for unfair dismissal?

You make a claim for unfair dismissal by submitting an ET1 form to the Employment Tribunal that is local to your employer. The Employment Tribunal has a postcode list on its website which states which Employment Tribunals cover which postcodes. Please note that as above you must submit the ET1 to your former employer’s local Employment Tribunal, not the Employment Tribunal closest to your residential address.

You can submit your claim by post, email or fax. Email is generally recommended.

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How long do I have to submit a claim for unfair dismissal?

As above, you have three months less one day to submit a claim for unfair dismissal to the Employment Tribunal.
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What’s the procedure once I’ve submitted my unfair dismissal claim?

The Employment Tribunal will contact you within a month (usually) to acknowledge that your claim has been received and that a copy of the claim has been passed on to your former employer. Your former employer will then have 28 days from the date of the Employment Tribunal’s acknowledgment to submit a response to your claim. Once this response has been received the directions pursued are normally in this order:

  1. You produce and send to your former employer a Schedule of Loss (a document setting out what you calculate your losses are)
  2. Both you and your former employer gather together documents relevant to the case and produce a list of the documents. Both parties then exchange their lists.
  3. Both parties exchange their relevant documents
  4. The trial bundle for the Employment Tribunal hearing is prepared (who prepares it depends on what you and your former employer agree)
  5. Both parties exchange the witness statements that they intend to rely on at the Employment Tribunal
  6. The Employment Tribunal hearing (normally 6 to 9 months after you submit your ET1 claim form)
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Do I need a specialist employment lawyer for my unfair dismissal claim?

It really depends on the complexity of your claim and what you want! If your claim is a simple one and you think that you can handle it (and have the time to do so) then have a shot at it. However, if you don’t think that you’ll be able to handle the pressure of an Employment Tribunal claim, your claim is particularly complex, or you simply want an experienced professional to handle your claim for you then get in touch with a specialist employment solicitor. They often take cases on no-win, no-fee agreements and you can get a litmus test as to whether your claim is a good one if a solicitor is prepared to take it on through a no-win, no-fee agreement.
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