Employment law – Unfair dismissal

The experience of being dismissed by your employer, or of leaving them after a workplace dispute, is always unpleasant. But if this is what has happened to you, you may be able to take legal action against your employer and seek compensation.

Any employee who has the qualifying period of service has the right not to be subject to an unfair dismissal. If the employee is dismissed, an employer must demonstrate that the reason for dismissal falls into one of the categories set out in the Employment Rights Act 1996.

These categories are as follows:

The employee lacked capability or qualification;
The dismissal was a consequence of misconduct by the employee (such as dishonesty, poor attendance, failure to follow instructions, and which can amount to gross misconduct);
There is a genuine situation of redundancy;
The continuation of employment would contravene a statutory provision;
Some other substantial reason -i.e. any reason that does not fall within the above reasons;

It is incumbent on the employer to prove one or more of the above reasons for a fair dismissal, failing which the dismissal will constitute an unfair dismissal. In the event that the employer is able to prove that the dismissal falls within one of the categories above the Employment Tribunal retains the discretion to decide “in accordance with equity and the substantial merits of the case” whether the dismissal was fair. The Tribunal will reach a determination on the fairness of the dismissal based on whether the dismissal was within the “range of reasonable responses” available to that employer in all the circumstances.

Qualifying period of employment

In order to meet the qualifying period of employment an employee must have been continuously employed for at least 23 months and 3 weeks and not have been served with notice before completing 2 years of employment.

There are also some limited exceptions where the continuous period does not apply at all, so that you can bring a claim for unfair dismissal without having worked for any minimum time. This is known as “automatic unfair dismissal” (see below).

Following the correct process

If the employer claims to have dismissed an employee for a justified reason, the dismissal will still be unfair if the employer has not followed the correct process. An example would be where your employer has not followed a proper consultation or selection process in a redundancy situation. For dismissals based on misconduct, or performance, the process that your employer should follow is largely governed by the ACAS Code of Practice , which provides that there should be sufficient investigations, evidence, warnings (in most cases) and the right to be accompanied at meetings.

Automatic unfair dismissal

There are some reasons for dismissal that are automatically unfair. If you are dismissed for any of these reasons then you should be able to make a claim to an Industrial Tribunal for unfair dismissal.

If your employer dismisses you for exercising or trying to exercise one of your statutory (legal) employment rights you will have been automatically unfairly dismissed.

An employee’s statutory employment rights include a right to:

A written statement of employment particular;
An itemised pay statement;
A minimum notice period;
Maternity, paternity or adoption leave;
Time off for antenatal care;
Parental leave;
Time off for dependants;
The right to request flexible working arrangements;
Not to be discriminated against because of your gender, race, disability, religion or belief, political opinion, sexual orientation or age;
Guaranteed pay when work is not available for you;
Time off for public duties (for example, jury service);
Protection against unlawful deductions from wages;
Remuneration during suspension on medical grounds;
Refusing to do shop or betting work on a Sunday;
Making a public interest disclosure or ‘blowing the whistle’;
Time off to look for work or make arrangements for training prior to redundancy;
Time off for study or training;

Dismissal before, during or after business transfers

If the business you work for is being transferred to another company or taken over, you may be protected under the ‘Transfer of Undertakings’ (TUPE) protections.

If you are protected and you are dismissed by either your old or new employer because of the transfer, or a reason connected with it, the dismissal will be automatically unfair. The only exception to this is if your employer can show the dismissal was for an economic, technical or organisation reason.

COMPENSATION

If an employee is successful in their unfair dismissal claim they can claim compensation for their unfair dismissal. The compensation is split into Basic Award and Compensatory Award.

The maximum an employee can be awarded in compensation for unfair dismissal is £93,332 – the maximum amounts under the Basic Award and Compensatory Award combined.

Capped
However, it is important to note that the Compensatory Award is also capped at an employee’s yearly salary.

When awarding compensation for unfair dismissal, the tribunal will also take into account whether the applicant tried to resolve the dispute by using the employer’s appeal procedures, before making an application to the tribunal.