Unfair Dismissal


Unfair Dismissal

Unfair dismissal can arise from numerous situations. A dismissal is deemed to be unfair if an employee has exercised specific rights relating to their employment. After a certain period of time with an employer, every employee gains an automatic right not to be unfairly dismissed.

Unfair dismissal

If there is some reason why the employer has to dismiss a member of staff it must fall within one of the categories contained within Employment Rights Act 1996.

A dismissal will be justified if;

  • An employee lacked the necessary qualification or ability to carry out their work
  • The employee behaved in such a way that justified their dismissal such as poor attendance, being dishonest or conducting themselves in such a way that would fall under gross misconduct
  • If there was a genuine requirement for redundancy
  • Continuing employment would contravene a statute or requirement of the role
  • Any other ‘substantial reason’ – This could be anything from refusing to accept a reasonable change to your employment terms and conditions or something such as problems with clients.

Each dismissal case will be judged independently and based on facts.

By continuing with the employment, this would contravene a statute.

An employer must be able to prove that they dismissed the employee for one of the fair reasons outlined above. If they cannot, your employment will be unfair and you may have a claim.

However, it is important to note even if an employer does use one of the acceptable reasons for dismissal, an employee can still take further action and it would be up to an Employment Tribunal to decide whether the employee was fairly or unfairly dismissed.

Unfair Dismissal Processes

Even if your employer has used one of the ‘fair’ reasons for your dismissal, it can still be classed as unfair if they haven’t followed the correct procedures.

As an example, this could be a situation where your employer has not complied with the correct consultation process if you have been made redundant. In an unfair dismissal case, even if you are successful the amount of compensation that you receive can be reduced.

Sometimes referred to as a Polkey reduction, this is applicable if your employer demonstrates that if they had followed the right process their decision would still be the same.

Qualifying periods

For unfair dismissal to apply, an employee must have worked with an employer for a certain amount of time. You must have been in employment for at least 23 months and 3 weeks. If notice is served during this time you cannot claim unfair dismissal, even if it is within the last three weeks.

However there are some exceptions to this rule and the qualifying period is not applicable.

This is often when the situation is classed as automatic unfair dismissal and will apply when;

  • A dismissal was initiated as a direct result of a health and safety issue that comes to your attention.
  • If you have enforced a statutory employment right, such as taking paternity or maternity leave
  • During whistleblowing procedures
  • Any activity associated with a trade union
  • If you are dismissed as a result of a business transfer because you are protected under TUPE regulations

Making a claim

If you decide to bring a claim for unfair dismissal you may be entitled to compensation which consists of both a basic and compensatory element.

The basic award is a statutory figure which involves the multiplication of continuous service with the age of the employee and their weekly pay.

This can be quite complex but generally as follows;

  • For every year of employment over the age of 41 years, the employee will receive pay equivalent to a week and a half
  • For every year of employment between the age of 22 and 40 years, the employee will receive pay equivalent to one week
  • For every year of employment aged 22 and under, the employee will receive pay equivalent to half a week

Weekly payment amounts used to calculate redundancy payments will use your usual weekly pay (gross) at the time of your dismissal. The maximum amount that you can claim is £14,370 for the basic award.

Employment tribunals have the power to reduce this basic award if they discover that your conduct before your dismissal would justify a reduction, even if it wasn’t your conduct that resulted in a dismissal.

Compensatory Award

The second type of award that a claimant can receive is known as a compensatory award. This is much more than the basic award. The Employment Rights Act determines that this is a figure that the Employment Tribunal believes to be acceptable in relation to the loss that was suffered by the employee as a direct result of unfair dismissal.

The main types of loss that an employee can claim for include loss of earnings, loss of future earnings and loss of your statutory rights as well as loss of pension.

Where wages are concerned, the Tribunal will also factor in company benefits such as a vehicle, medical insurance or a company bonus or commission if you expected to receive this. When calculating a figure for future losses this will always be a speculative figure.

They will also take into consideration any actions you have taken to mitigate your loss such as finding another job before the hearing.

Taking your employer to a tribunal is not an easy decision to make. If you do decide to go down this avenue, you must prove that you were unfairly dismissed.

Your employer has to prove that you weren’t. To provide a defence an employer must demonstrate they followed the right processes, they have not treated you as a special case and they can prove that you were fully aware of all company rules and regulations.

You can only take your employer to a tribunal once you have exhausted the internal complaints procedure and you are still unhappy with their response.

Unfair dismissal is a wide ranging area and each case is judged on the facts and the individual situation. As a result, it is strongly advised that you seek professional legal advice as soon as possible if you think you may have a valid claim.