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Unfair Dismissal (FAQS)

If you can show you have been dismissed from work unfairly, you may be able to claim for unfair dismissal.

Was your dismissal unfair?

Employees have the right to be dismissed fairly. This means employers must show good reason for the dismissal and follow the correct legal process in dismissing someone.

Dismissals can apply in many circumstances, such as where the employer terminates an employment contract by redundancy, or following a disciplinary or performance management process.

Reasons for fair dismissal usually relate to:

  • Misconduct
  • Redundancy
  • Statutory restriction on the employer, for example, if you no longer have the right to work in the UK
  • Capability or qualifications to do the job
  • Some Other Substantial Reason (SOSR) that justifies the dismissal

You have a right to be told why you have been dismissed. If you have at least two years’ service or are pregnant, you can request a written statement confirming the reason for dismissal. This must be provided within two weeks of your request.

In addition to showing good reason for the dismissal, the employer must also have acted reasonably in treating that reason as sufficient grounds for dismissal.

This area is particularly complex and each case will turn on its own facts. Some considerations could include whether your employer has followed a fair procedure to investigate any complaints or allegations against you; whether you have been offered any support from your employer such as training to address the issues; and consistency of decision making and whether other employees have been treated differently in similar circumstances.

Taking advice on your case will help to identify if the reason for your dismissal qualifies as fair or unfair, and the options open to you.

Who can claim for unfair dismissal?

Only employees have the right to claim unfair dismissal. This includes part-time and fixed-term employees. Workers and self-employed individuals cannot claim for unfair dismissal.

In practice, this creates a considerable grey area. While your employer may class you as a worker, the facts and terms of the working relationship may suggest you qualify as an employee, affording you greater legal protections and rights, such as the ability to bring an unfair dismissal claim. It always best to take legal advice to confirm your status.

Can I claim unfair dismissal before two years’ service?

Ordinarily, you can usually only challenge a dismissal if you have two years’ or more service with the organisation, known as the ‘qualifying period’.

While employees with fewer than two years’ service generally cannot bring a claim for unfair dismissal, there are certain types of dismissal which are deemed ‘automatically unfair’. Where an employee can show that one of these applies to their dismissal, they have the right to bring a claim for unfair dismissal, irrespective of their length of service.

What makes a dismissal ‘automatically unfair’?

An automatically unfair dismissal means an employee’s statutory legal rights are considered to have been breached by reason of the dismissal, whether or not the employer has acted reasonably through the dismissal process.

Dismissals are deemed automatically unfair in the following circumstances:

 

  • If you were acting as an employee representative
  • If you have asked for your legal rights at work, eg to be paid minimum wage or for your holiday pay entitlement
  • If you took reported a health and safety issue
  • If you have reported your employer for wrongdoing (‘whistleblowing’)

You can still lawfully be dismissed even where you fall under these categories. What renders the dismissal automatically unfair is where one of these is the reason for the dismissal.

Can I claim unfair dismissal for workplace discrimination?

By law, employers cannot discriminate against employees by reason of protected characteristics. This means it is unlawful to dismiss an employee because of:

    • Age
    • Disability
    • Gender
    • Sexuality
    • Race, ethnicity or nationality
    • Religion or beliefs
    • Pregnancy or being on maternity leave
    • Marriage or being in a civil partnership

 

Your employer can still lawfully dismiss you even if you come under one of these categories, but this cannot be the reason for the dismissal. If you can show that you were dismissed because of discrimination against you, this could qualify as unfair dismissal.

How long do I have to make a claim?

To bring a claim for unfair dismissal, you have only three months less one day from the date your contract was terminated.

This is an extremely challenging timeframe as you will first need to have established your eligibility and built your grounds for challenge.

Take early legal advice as soon as you are dismissed, or when you think you may be dismissed, to ensure you are well-positioned to develop your case in good time.

What are the remedies for unfair dismissal?

If a tribunal finds that you were unfairly dismissed, there are a number of penalties your employer could face.

You could be awarded compensation, the level of which will be determined by your age, gross weekly pay and length of service.

Employers can also be ordered by the tribunal to reinstate you in your role or to re-employ in a different job. Additional compensation may be awarded if the employer refuses reinstatement.

How much compensation could I get?

Awards for unfair dismissal claims are made of two parts. There is the basic award, which usually equates to statutory redundancy pay, and the compensatory award to cover the employee’s losses such as future loss of earnings and others resulting from the dismissal.

If you are successful at tribunal in a claim for unfair dismissal, the tribunal can order a basic award of up to £15,750, and in addition, the maximum you can be awarded in compensation is either £86,444 or 52 weeks’ gross salary, whichever is the lowest amount.

Compensation limits do not apply to unfair dismissals relating to whistleblowing or health and safety.

What is ‘mitigation of loss’?

If you are making a claim for unfair dismissal, it’s important to understand you are under a duty to mitigate your losses resulting from the dismissal. This means you are required to try and find new employment as soon as reasonably possible after you have been dismissed.

The obligation is not to have secured a new job before the tribunal proceedings, but you must show the tribunal you have made reasonable efforts to find new work and reduce the financial losses resulting from the dismissal.

‘Reasonable’ in this context is considered subjectively and will turn on the facts of the case and the employee’s circumstances, conduct and intentions.

Is it lawful to dismiss someone on maternity leave?

Employers may be able to lawfully dismiss employees on maternity leave, provided the reason for dismissal is not related to the maternity leave.

Dismissals could be deemed fair by reason of:

  • Redundancy – The redundancy must be fair and genuine and the employee must have been offered alternative, suitable employment within the organisation.
  • Breach of contract – The employee has breached the terms of their contract by for example carrying out paid employment for another organisation while also taking statutory maternity pay.
  • More than 6 months’ leave and it is no longer possible to return to the old job – The employee must have been offered alternative, suitable employment within the organisation.

If you have been dismissed while on maternity leave or soon after your return to work, you should request written details of the reason(s) for dismissal and take professional advice to understand whether you have been unfairly dismissed.

I was on a fixed-term contract, can my dismissal be deemed unfair?

Your rights under a fixed-term contract will be determined largely by the terms of the contract itself.

Usually, a fixed-term contract means your job ends on a particular date or on completion of a certain project or piece of work. If your employer wants to end the agreement earlier, you should consult the contract terms on early termination. If there is provision for the contract to be brought to an end prior to the expected date, your employer is able to do so provided they do so fairly and in accordance with any associated obligations such as giving you sufficient notice. Ordinarily, early termination will mean a weeks’ notice, unless the contract specifies more.

Take advice on your circumstances if your employer has dismissed you without the required notice period.

I’ve been dismissed while on probation, do I have any rights?

By law, employers can dismiss employees who are on probation. Generally, employees on probation are given 1 week’s notice that their contract is being terminated. Some contracts of employment may provide a longer notice period.

Consult your contract of employment to understand what the employer is required to do in the event of terminating a contract during the probationary period.

What is the difference between unfair dismissal and wrongful dismissal?

The right to be dismissed fairly is a statutory right whereas wrongful dismissals relate to contractual rights.

Wrongful dismissal is concerned with the employer breaching terms of the employment contract. Claims for wrongful dismissal are considered against the specific terms of the contract and the failure of the employer to meet these obligations.

Breaches of contract that could give rise to claims for wrongful dismissal include:

  • Not giving the employee sufficient notice of contract termination where a minimum notice period applies
  • Ending a fixed-term contract before the date agreed under the contract
  • Where the employer is in breach of contractual disciplinary or redundancy procedures in dismissing the employee

Unlike unfair dismissal claims, there is no minimum service requirement for wrongful dismissal claims.

Compensation is usually limited to the employee’s pay and benefits during the period of notice that the employee would have been given, had the contract been terminated lawfully.

Do you need advice about unfair dismissal?

Contact DavidsonMorris for help and guidance on unfair dismissal.

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