Unfair dismissal

Have you been dismissed or felt that you were forced out -constructively dismissed from your employment within the last three months? If so you may be able to make a claim against your ex-employer.

Have you been unfairly dismissed or are you being unfairly dismissed?

We can help you and advise whether you have a claim for unfair dismissal. In many cases, it is possible for us to negotiate a settlement of your potential claim on your behalf without you having to start litigation in the Employment Tribunal. We have over 25 years’ experience and regularly secure improved severance terms for clients who are facing the prospect of losing their job.

What is Unfair Dismissal?

There is a statutory right for employees not to be unfairly dismissed and this is enshrined in section 94 of the Employment Rights Act 1996 (ERA 1996).

Who is protected from being unfairly dismissed?

Only employees have the right not to be unfairly dismissed. The right does not extend to those who are self-employed, independent contractors or “workers”. However, whether or not someone is actually an employee is often a grey area. If you are in any doubt we would encourage you to seek advice as soon as possible.

How long do you have to be employed in order to be protected from being unfairly dismissed?

Generally, you need to have been continuously employed by your employer for at least 2 years. Where an employee is dismissed for an impermissible reason, there is no qualifying period requirement.

Is there a time limit or deadline for bringing an unfair dismissal claim?

Claims must be commenced within 3 months less one day of the effective date of termination (EDT) of employment. The EDT is:

The date notice expires
The last day of employment where no notice is given
The day a fixed term ends

Usually, the first stage in commencing a claim will be to start ACAS early conciliation. This is generally a requirement before a claim can be submitted to the Employment Tribunal. Please visit https://www.acas.org.uk/early-conciliation for more information about the early conciliation process.

In exceptional circumstances, claims may be submitted outside the 3 month deadline. If you have been unable to submit a claim in time, do not delay and contact us now.

In many cases where clients have claims for unfair dismissal we are able to successfully negotiate a settlement for them before it is necessary to submit a claim to the employment tribunal. The sooner you contact us for advice, the sooner we can progress your case towards a satisfactory outcome for you.

What amounts to a Dismissal?

Employment is terminated by the employer either with or without notice
A fixed term contract comes to an end
Resignation by the employee by reason of the employer’s conduct ie constructive dismissal

It does not include: agreed termination, voluntary resignation or termination where the contract has been frustrated.

Is the reason for your dismissal a potentially fair reason?

An employer must show that the reason or principal reason for dismissal is a potentially fair reason.

Potentially fair reasons to dismiss are:

Redundancy
Capability
Conduct
Breach of statute
Some other substantial reason

The employer must establish a potentially fair reason. A tribunal will then consider whether the employer behaved reasonably in dismissing for this reason.

If the reason or principal reason was one of a list of impermissible reasons a dismissal will be automatically unfair. Impermissible reasons for dismissal include:

Pregnancy
Whistleblowing
Reasons relating to health and safety
Trade union membership

Was the dismissal procedurally fair?

Even where there is a potentially fair reason for termination, such as redundancy, a dismissal may nevertheless be unfair where the employer has failed to follow a fair procedure. You may, therefore, have grounds for a claim for unfair dismissal where there is a potentially fair reason for terminating your employment but your employer has gone about it in the wrong way and has not complied with established rules of fairness before dismissing you. We assist many employees who are being or have been dismissed but where the employer has not carried out the process properly or fairly and in most of these cases we are able to negotiate settlement terms or improved settlement agreement terms for them.

By way of example, in a redundancy situation, an employer will usually be expected to carry out a fair selection process, to consult with you and to explore alternatives to redundancy before redundancy is confirmed. If they do not do these things then you have a potential claim for unfair dismissal.

Can I obtain any interim remedy in the Employment Tribunal?

In certain circumstances, interim relief can be awarded to an employee claiming unfair dismissal before the final hearing of their case and before any finding of unfair dismissal has been made. Interim relief is only an option in certain types of claim such as where it is claimed that the employee was automatically unfairly dismissed for whistleblowing. Interim relief can include re-instatement, re-engagement or continuation of the contract pending the final hearing.

Claims for interim relief are heard at a preliminary hearing and there are strict time limits for applications for interim relief. The tribunal must be satisfied that it is likely that the final tribunal hearing will find that the reason for dismissal is as alleged by the employee. Claims for interim relief may become more common in view of the timescale for cases to reach a full hearing at Tribunal. Generally, cases are currently taking at least 12 months before reaching a final hearing.

What am I entitled to if I am unfairly dismissed?

In most cases, where a Tribunal holds that an employee has been unfairly dismissed, an order for compensation will be made consisting of:-

A basic award
Compensation

In addition, it is possible for a Tribunal to award re-instatement or re-engagement but these remedies are rarely sought and rarely awarded. There is no obligation for a Tribunal to order re-instatement or re-engagement.

In circumstances where an order for reinstatement or re-engagement is made and is not complied with by the employer additional compensation may be awarded unless the employer can show that it was not reasonably practicable for them to comply with the order.

What is a basic award?

This is calculated based on an employee’s gross weekly pay, length of continuous service and age. It is calculated in much the same way as a statutory redundancy payment. You may obtain an indication of the amount of the basic award you may receive by visiting https://www.gov.uk/calculate-your-redundancy-pay.

How is compensation for unfair dismissal calculated?

The aim of the compensatory award is to compensate an employee for their financial losses arising out of their unfair dismissal. These losses will mainly consist of loss of salary and benefits such as pension contributions and will run from the date of termination up to the date when the employee secures new employment at an equivalent or higher rate of pay. Losses can also include out of pocket expenses incurred in seeking new employment.

An employee must provide a Schedule of Loss to the Respondent and to the Tribunal during the course of a claim. The Schedule of Loss must set out the financial losses and compensation being sought. Further details of what a Schedule of Loss should contain are available. An employee is under a duty to mitigate their losses by actively seeking new employment and must be able to demonstrate this to a Tribunal. Employees are therefore advised to keep a detailed record of all job applications made along with the outcome in order to be able to show that they have tried to secure suitable new employment and to reduce their ongoing losses. Where an employee is unable to do this any award of compensation is likely to be reduced.

An employer defending an unfair dismissal claim is likely to collate evidence of suitable jobs that have been available during the time the employee has been out of work in order to demonstrate that the employee has not properly mitigated their loss and to reduce the amount of compensation that is awarded.

Where a settlement is negotiated on your behalf, an estimate of the financial losses that you are likely to incur will be made.

The slightest error in the procedure can affect the fairness of a dismissal so please do not hesitate to contact us if you believe that you are being or have been unfairly dismissed.