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Unfair dismissal - Primer

Unfair dismissal - Primer

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Unfair dismissal - Videos

Unfair dismissal - Videos

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Unfair dismissal

Summary of unfair dismissal

An unfair dismissal occurs when your employer dismisses you for a reason that is unfair or uses an unfair procedure in dismissing you. There are several ways in which your employer could dismiss you unfairly:

  • Your employer doesn’t have a sufficiently good reason for dismissing you (for example, there wasn’t actually a redundancy situation);
  • Your employer doesn’t follow correct procedures in dismissing you (for example, they haven’t conducted a fair investigation); and/or
  • You have been dismissed for an automatically unfair reason (for example, you have been dismissed because you’re pregnant)
How do I know if I have been dismissed?

Whether you’ve been dismissed involves a consideration of whether your contract of employment has been terminated and, if so, by whom. This is normally a fairly uncontroversial point. If, for example, you’re told to “f*** off and not to come back” by your employer you can be fairly certain that your employer has terminated your contract of employment (bear in mind that this dismissal can potentially be retracted later). However, circumstances may not always be as clear-cut as that example. For example, you may believe that your employer has dismissed you (by telling you to get out) but your employer may not have intended such a statement to terminate the contract of employment. If you insisted that the statement terminated your contract of employment you may be deemed to have terminated your own contract of employment and resigned (instead of having been dismissed).

Is your dismissal a 'normal' unfair dismissal or an 'automatic' unfair dismissal?

The position up to 6th April 2012: if you were started your employment prior to 6 April 2012 you will need to have a period of one year’s continuous employment with your employer to make a claim of unfair dismissal, unless you have a claim for automatic unfair dismissal (as below).

The position from 6th April 2012:  if you commenced employment with your employer on or after 6 April 2012 you will need to have a period of two years’ continuous employment with your employer to make a claim of unfair dismissal, unless you have a claim for automatic unfair dismissal (as below).

Is this a case of 'automatic' unfair dismissal?

If the employee is dismissed for one of the following specific reasons an employee can bring a claim of “automatic” unfair dismissal against their employer even if they do not have one year’s continuous employment:

  1. If the employee is dismissed because they have made a complaint related to health and safety issues in the workplace that pose a threat to workers
  2. If the employee is dismissed because they are a member of a Trade Union or because they have taken part in industrial action
  3. If the employee is dismissed because they are an employment representative
  4. If the employee is dismissed for a reason connected with pregnancy, maternity or paternity leave
  5. If the employee is dismissed because they have asserted a basic statutory right (such as the right for sums not to be deducted unfairly from their wages)
  6. If the employee is dismissed for a reason related to their whistleblowing
  7. If the employee is dismissed because of spent criminal convictions
Have you had sufficient continuous employment with your employer to claim 'normal' unfair dismissal?

The position up to 6th April 2012: if you were started your employment prior to 6 April 2012 you will need to have a period of one year’s continuous employment with your employer to make a claim of unfair dismissal, unless you have a claim for automatic unfair dismissal (as below).

The position from 6th April 2012:  if you commenced employment with your employer on or after 6 April 2012 you will need to have a period of two years’ continuous employment with your employer to make a claim of unfair dismissal, unless you have a claim for automatic unfair dismissal (as below).

Are you within the time limits for your unfair dismissal claim?

Claims of unfair dismissal need to be brought to the Employment Tribunal within three months less one day (3 months less 1 day) of the date of their dismissal (or, if relevant, resignation).

[stextbox id=”custom” bwidth=”1″ color=”000000″ bcolor=”000000″ bgcolor=”ffffff” mleft=”0″ mright=”0″ mtop=”10″ mbottom=”30″ image=”null”]Example: John Doe is dismissed for gross misconduct on 5 December 2011. He receives a letter of dismissal on 7 December 2011. His “effective date of dismissal” is 5 December 2011 (the date on which the dismissal was communicated to him) and he must submit an Employment Tribunal claim by 4 March 2012, three months less one day from the date of the dismissal.[/stextbox]
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 redundancy situation. 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.
These are explained in greater detail below:
Has your employer followed a fair procedure in dismissing you?

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.
Did your employer make a decision that was within the reasonable range of responses in dismissing you?
[stextbox id=”alert” bwidth=”1″ color=”87bd44″ bcolor=”87bd44″ bgcolor=”ffffff” mleft=”10″ mright=”10″ mtop=”10″ mbottom=”10″ image=”http://www.direct2lawyers.co.uk/wp-content/plugins/wp-special-textboxes/images/video_camera.png”]Related link – Burchell and the range of reasonable responses test[/stextbox] How to get advice on your dismissal

Direct 2 Lawyers offer free, impartial advice on your unfair dismissal claim. Call 0845 544 1395 to talk to a qualified expert employment lawyer now.

Alternatively, there are a number of sources that you can get advice on constructive dismissal claims from:

  • The Citizens Advice Bureau
  • ACAS (the Advisory, Conciliation and Arbitration Service)
How to submit a claim for unfair dismissal

You can either submit a claim for unfair dismissal by yourself or instruct a specialist employment lawyer to do so on your behalf.

[service title=”Submit a claim yourself” icon=”http://www.direct2lawyers.co.uk/wp-content/uploads/2012/08/warning1_48.png” size=”32″]How to submit a constructive dismissal claim  to the Employment Tribunal yourself

Read more about submitting a claim yourself

[/service] [service title=”Instruct a specialist lawyer” icon=”http://www.direct2lawyers.co.uk/wp-content/uploads/2012/08/warning1_48.png” size=”32″]How to instruct a specialist employment lawyer to submit a constructive dismissal claim for you

Read more about instructing a specialist

[/service]
Compensation for unfair dismissal

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 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.

If, having considered the information below, you believe that you have an unfair dismissal claim, please contact us via the online form on your left or telephone us on 0845 544 1395. Alternatively, if you are calling from a mobile phone please call on <number> and we will call you straight back.

We will then carry out a Free, No Obligation preliminary assessment of your case and if we consider it appropriate we will offer to represent you on a no win no fee basis.

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