Unfair Dismissal

We know that losing your job can cause considerable stress.

Our Unfair Dismissal Solicitors can:


  • Advise whether you have a case for unfair dismissal.

  • Negotiate a settlement with your employer. This may include compensation for your unfair dismissal.

  • Represent you at an employment tribunal if required.

ElIGIBILITY REQUIREMENTS FOR AN UNFAIR DISMISSAL CLAIM

Two years continuous service with employer (but see exceptions): Since April 2010 an employee must have 2 years continuous service to bring an unfair dismissal claim. If the employee started employment with the employer before April 2012 the employee requires only 1 year’s continuous service.

Exceptions to the 2-year service period


There are some cases when an employee can bring a claim for unfair dismissal without having accrued 2 years’ service. In these cases, the dismissal will be classed as an “automatically unfair dismissal”. If, for example an employee is dismissed for:


  • belonging to or refusing to join a trade union, or

  • for taking part in trade union activities at an appropriate time or

  • for taking part in protected industrial action or for

  • wanting to take maternity, paternity or adoption leave,

  • for taking parental leave or

  • Taking time off for the care of dependants

  • Time off for public service (such as jury service)

  • Whistle blowing

  • Transfer of Undertakings (protection against dismissal during business mergers)

  • Unfair redundancy selection

  • Forced early retirement

  • Part-time or flexible working

  • Trade union membership

  • refusing to work in a shop on a Sunday or

  • sex, age, race reasons (eg having made a complaint of discrimination) gender reassignment, sexual orientation, age, religion or disability discrimination (in these particular cases, a worker is likely to be better off making a discrimination rather than unfair dismissal claim as compensation payments are higher in discrimination cases) or

  • whistleblowing where disclosure is in the public interest or

  • for any of the reasons set out in S104 of the Employment Rights Act 1996 (as amended)

  • or a woman is dismissed because she is pregnant

  • the employee can bring an Unfair Dismissal claim against their employer despite not having 2 years’ service.

An automatic unfair dismissal claim, like any other claim for being unfairly dismissed, must be brought before an Employment Tribunal within 3 months of the date of the termination of your contract. If this time limit has passed, you are not entitled to bring an unfair dismissal claim.


Time limit of 3 months less one day: There is a time limit of 3 months less one day from the date of termination of employment to bring a claim for unfair dismissal. If you wish to make claim for unfair dismissal you need to take legal advice as soon as possible. Be aware of delays caused by an appeal procedure. Some employers will deliberately string out the appeals procedure so that the decision is not made until after 3 months. Do not be lulled into a sense of security - if you are appealing your dismissal and the internal appeal takes more than three months, no matter the reason that your employer gives you, you must ensure that you lodge your unfair dismissal at the ET within the 3 months’ time limit- otherwise you will lose your right to do so.




WHAT IS UNFAIR DISMISSAL?


To win an Unfair Dismissal Claim, the employee must  have completed two years’ service with their employer(subject to certain exceptions – please see below) and must be able to prove they have been dismissed.


Have I been ‘dismissed’?


When considering whether you have been unfairly dismissed, the first step is to check whether in the eyes of the law you have actually been ‘dismissed’.


Your employer may expressly terminate your employment by saying “I am dismissing you” or words to that effect. Your employer may also hand you a dismissal letter though that is not essential. However, there are occasions when a dismissal is not so clear-cut. For instance, your employer may say to you “ I am giving you two options – you can either resign or I will dismiss you” and you resign that is a dismissal even though he did not expressly dismiss you.


Dismissal can also occur if you resign because your employer has breached a term of your employment contract, your employer employs language which makes you believe that they are firing you and you then walk out or your employer does not renew your fixed term contract.


Though there has not been an express dismissal in these instances it is likely that an Employment Tribunal (ET) will conclude that you were dismissed.


The key considerations for an Unfair dismissal. There are two primary considerations for an ET to consider when looking at whether a dismissal was unfair:


  • The reason for the dismissal; and

  • Whether the employer acted reasonably in all the circumstances.

FAIR REASONS FOR DISMISSAL


Under the law an employer can dismiss an employee fairly for five reasons. To avoid unfair dismissal, the employer must show that the dismissal was for one of these five reasons:


Capability


This would apply where an employee is dismissed for poor performance, does not have the right skills, experience and qualifications or is regularly ill and absent from work for long periods of time.


An employer must follow the proper procedure to terminate the employee’s employment. Failure to do so will result in the employee winning their Unfair Dismissal Compensation Claim with a possible uplift in the compensation award by the ET due to the employer’s failure to follow the proper procedure.


Conduct


The most common reasons for dismissal under this head are fraud, theft, and other serious misconduct. As with any dismissal, the employer must ensure that they have followed the proper procedure prior to dismissing the employee and that the dismissal is reasonable in the circumstances. Failure to do so will result in the employee winning their Unfair Dismissal Compensation Claim with a possible uplift in the compensation award by the ET due to the employer’s failure to follow the proper procedure.


Illegality


Under this head the employee may have committed or been accused of a criminal offence at work or outside working hours. It may also be reasonable to dismiss an employee under this head if for instance the employee needs a driving licence to perform their duties for the business and they lose their licence resulting in the employee not being able to perform their duties for their employer.


Redundancy


A Redundancy situation would arise when an employer plans to close down part or all of their business at a location where the employees work; or where the business no longer needs the same number of workers to carry on that particular  work. For dismissal on the ground of redundancy to be fair an employer must follow the proper redundancy procedure to terminate the employee’s employment. Click here for further information on Reorganisations and Redundancies. Failure to do so will result in the employee winning their Unfair Dismissal Compensation Claim with a possible uplift in the compensation award compensation award by the ET due to the employer’s failure to follow the proper procedure.


Some other substantial reason


This head can be used for other reasons that do not fall under the other four heads. If the employer can show that the reason for the dismissal was a ‘substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held’ the dismissal is regarded by the law as potentially fair even if does not fall under one of the other four heads.


Unfair Dismissal Process

Even if an employer shows that the dismissal was for one of the five fair reasons, the employer still has to satisfy the ET that they followed a full and fair dismissal process equivalent to the procedures in the ACAS Code of Practice.


The statistics show that about 97% of employers lose unfair dismissal claims by not following the correct procedure.


What is a ‘fair’ dismissal procedure?


The ACAS Code of Practice sets out a fair disciplinary procedure as follows:


Step 1 – Notify the employee in writing of the details of the alleged poor performance or misconduct etc. Carry out the investigation. Inform the employee of the possible outcomes of any disciplinary meeting so they can prepare. You also need to give your employee copies of any evidence you are relying on, the time and date of the disciplinary meeting and notify the employee of their right to be accompanied to the meeting. You should also notify the employee of their right to appeal the decision.

Step 2 – The employee should be provided the opportunity to answer the case against them and provide their own evidence.

Step 3 – The employee should be notified in writing of the outcome. The employer has several options : a first or final warning can be issued, depending on the seriousness of the situation. If the offence is one of gross misconduct an employer may decide to dismiss the employee straight away.

Step 4 – When the employee receives notification of any disciplinary action to be taken against them, they should also be informed of their right to appeal the decision.


Employee FAQS


Question: I am pregnant. My employer fired me yesterday. I told him that I was pregnant last week. He says that the company cannot cope with my absence during maternity leave and that the company has no funds to hire someone else to cover for me whilst I am off on paid maternity leave. Is this a fair reason?


Answer: A dismissal for this reason is an ‘automatically unfair dismissal’. This means that your employer has unlawfully fired you for exercising your employment rights . The law does not allow an employer to fire an employee solely because they are pregnant and may go off on maternity leave.


The following are some examples of an employee’s general employment rights that, if they are dismissed because they have exercised, will count as an automatic unfair dismissal:

dismissal, it does not matter how long the employee was employed – as the 12 month continuous employment requirement doesn’t apply.


Question: I have recently been dismissed from the police force. Can I claim unfair dismissal against the Chief Constable?


Answer: No, you cannot bring an unfair dismissal claim against the Chief Constable. Due to the nature of your job some groups of workers including members of the Police force Police officers, registered dock workers, members of the armed forces, independent contractors or freelance workers and employees above the UK retirement age (65)

are unable to bring an unfair dismissal claim.


However, if you believe that you have been treated unfairly, we would ask you to contact our employment solicitors for specialist legal advice on your rights.


Question: I have just received an “at risk of redundancy” letter but I know that there was no redundancy situation. My job is still there and they just want to get me out. Can I claim unfair dismissal?


Answer: Your employer can make you redundant as long as they have a good reason for wanting to make you redundant and they use a fair selection process and a fair procedure.

Your employer needs to discuss the reasons for making you redundant with you, give you notice (eg if your employment was between 1 month and 2 years – you should get 1 weeks’ notice; if employed between 2 and 12 years – you should get one week’s notice for each year that you have been employed with the organisation and if you have been employed for 12 years or more you should get 12 weeks’ notice and make a redundancy payment to you in accordance with the law.

If you know that your job is still there and you think that your employer has another or hidden reason for wanting to terminate your employment, you should write to your employer setting out the reasons why you think that your redundancy is not a genuine redundancy. This should ideally be followed by a meeting with your employer or employer’s HR manager/officer and your supervisor/manager to discuss the proposed redundancy. If possible, you should attend all meetings with your employer with a colleague or your Union representative if you are a member of a Union. Make written notes of all discussions with your employer.


Please click here read more about Redundancy.

Question: I have just been dismissed and wish to bring an unfair dismissal claim against my employer. I do not have the funds to employ a solicitor to assist me. What can I do?

Answer: You do not need a solicitor to make an application for unfair dismissal before an Employment Tribunal as you can represent yourself.


However, employment law can be quite complex. Please call us to discuss. We offer a free 30-minute telephone consultation to prospective clients. Employment law is a complex and fast changing area of law. We may be able to advise you on the steps that you should take to progress your case or with legal representation on a “Damages based agreement “ basis or a “No win-no fee” basis. Retaining the service of a specialist Unfair Dismissal Solicitor will give you a good chance of success.


Questions: I have been in dispute with my line manager over the appointment of a friend of his who is gradually taking over my responsibilities at work. I have just had a “protected conversation” with my employer. I want to leave the company and my employer has suggested that we enter into a settlement agreement. Can you act for me?


Answer: It appears that your employer wants to avoid your unfair dismissal claim going to the employment tribunal. A settlement agreement is a legally binding agreement between an employee and employer, setting out the terms on which the employment relationship will end. This might be for redundancy reasons, mutual consent or dismissal. The Settlement Agreement usually provides for a severance payment by the employer, in return for which the employee agrees not to institute or pursue any legal claim the employer may have.


Settlement Agreements are used where an employer wishes to avoid the costs of an employment tribunal.


For a settlement agreement to be binding, the law stipulates that the employee must obtain independent legal advice on the terms and legal effect of the settlement agreement before signing the settlement agreement. Your employer will normally contribute to your legal costs.


Please click here to read about  settlement agreements and how they work.

Question: If I win my unfair dismissal claim, can I get my job back?


Answer: If you want to get your job back( i.e. reinstatement) , you can ask the ET to make an order of reinstatement if you win your unfair dismissal claim. If you win and the order is made you can either get your job back or your employer may put you into a similar role if your job is no longer available.


Most employees who bring an unfair dismissal claim against their employer do not usually ask for reinstatement. The main reason for this is that relations between the employer and the employee would become strained irrespective of the outcome of the ET claim. Many employees would not feel comfortable going back to a job from which they have been dismissed or forced to resign.


Second Tribunals do not usually like to order an employer to take an employee back more so if there has been misconduct by the employee resulting in the ET claim. If you really want your job back our employment lawyers would advocate your reinstatement.

I would like to seek my legal costs if I win my unfair dismissal case.


You can apply for your employer to pay your legal costs if you were to win your case but the Tribunal may refuse to award you your costs. Whilst Tribunals can award costs against either party in any given situation they rarely do and generally proceed on the basis that both parties will bear their own costs in any claim. However if you believe that there is a good reason for the Tribunal to award you your legal costs you can make an application for payment of your legal costs. You should however proceed on the basis that you will have to bear your own legal costs.


Specialist Unfair Dismissal Solicitors


How can Pure Business Law help?


If you believe that you have been dismissed by your employer unfairly or treated unfairly, please contact us today. We have specalists solicitors that can deal with all aspects of unfair dimissal. Our specialist redudnancy solicitors can also advise you on you redundancy and whether it was fair. Do not leave it late!


You can contact us by telephone on 01234 938089 or by email at enquiries@purebusinesslaw.co.uk. We are specialist Employment Law Solicitors based in Bedford and operate nationally.


If you would like to discuss anything raised in this article, please contact us and speak with one of our solicitors. Pure Business Law is regulated by the Solicitors Regulation Authority and is a licensed member of the Law Society of England & Wales.


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