Our latest fact sheet looks at unfair dismissal. Our series of factsheets is intended to cover topics which individuals may find of particular interest or, which are universally relevant but tricky to navigate. Our aim is to give basic facts about the legal concepts involved and to debunk the technicalities, using plain English.

Termination of employment

Losing your job is an upsetting experience for anyone and can result in real financial hardship. Many individuals will therefore want to know if they have any legal redress available to them? There are various claims which may be brought in an employment tribunal, including breach of contract (for example if notice monies have not been paid but, this is capped at £25,000) and unfair dismissal. However, it’s important to understand whether you are eligible to bring such claims and what your chances are of being successful.

Can I bring a claim of unfair dismissal?

Not everyone whose employment has terminated can bring a claim of unfair dismissal. There are some important qualifying criteria which you must satisfy otherwise you will not be eligible to bring an unfair dismissal claim. The requirements are:

• You were employed as an employee under a contract of employment. If you were actually self-employed or a worker then you can’t bring a claim.
• You were employed by your employer for at least two years. There are some narrow exceptions to this requirement, including if you were dismissed for a pregnancy related reason or for whistleblowing.
• You must have been dismissed. This includes both express termination by your employer -either with or without notice, the non-renewal of a fixed term contract and where you resign in response to a serious breach of contract by your employer (this is known as “constructive dismissal”). For further information on constructive dismissal click here.
• You must submit your claim to the employment tribunal within three months of the end of your employment.

Was I dismissed fairly?

Employers cannot dismiss staff on a whim; they must have a genuine reason for doing so. The law lays down the acceptable reasons for dismissal. If the reason you were dismissed does not fall into one of these categories then your dismissal will be unfair. Your employer should have informed you of the reason for your dismissal. The categories are:

• Redundancy.
• Misconduct.
• Capability (covering both lack of qualification or skills and sickness/injury).
• Illegality (where an employer cannot continue to employ you legally. For example, because your immigration status has changed or you work as a driver and have lost your driving licence).
• Some other substantial reason (a “catch-all” category which encompasses a broad range of possible reasons including loss of trust and confidence).

Note that it is generally no longer possible to force someone to retire i.e. to dismiss them solely because they have reached pension age.

What else makes a dismissal unfair?

Just because an employer can show it had a genuine reason for terminating your employment, it is not home and dry. It must still show that it acted reasonably in dismissing you. Broadly this means showing that it followed a fair procedure in carrying out the dismissal and that its decision to dismiss was within a band of reasonable responses which a reasonable employer may have taken in the same circumstances (the “band of reasonable responses test”).

What does a fair procedure look like?

The procedure which the employer should have adopted will depend upon the reason for the dismissal. Check to see if your employer has an appropriate policy in its staff handbook (such as a disciplinary or performance management policy) and whether it is following it in your case. For example, are any stated timelines being followed?

In the case of a dismissal for misconduct then the benchmark for fairness is the ACAS Code of Practice on Disciplinary and Grievance Procedures (the “Code”). Employment tribunals will take the recommendations of the Code into account when adjudicating on whether a fair procedure was followed in a case involving dismissal for misconduct. The basic principles it sets out, include:

• Issues should be raised and dealt with promptly and meetings, decisions or confirmation of those decisions should not be unreasonably delayed.
• An employer should establish the facts of each case before taking action by carrying out such investigations as may be necessary.
• Employees should be told of the basis of the problem and given an opportunity to put their case in response before any decisions are made.
• An employee has the right to be accompanied by a colleague or trade union official at any formal meetings (but, not at a purely fact finding meeting).
• An employee should be given the opportunity to appeal against any formal decision.
• Employers should act consistently (i.e. treat employees in the same situation, the same).
• An employer should not pre-judge a situation and where possible, different people should carry out the investigation, disciplinary meeting and any appeal hearing.

The Code does not apply to dismissals for redundancy or ill-health or to most dismissal for some other substantial reason. However, it is still for a tribunal to judge of a fair procedure has been followed in such cases.

How do I bring a claim for unfair dismissal?

You can bring a claim in an employment tribunal for unfair dismissal (if you are eligible).

No application fee is payable to bring a claim but you will have to pay for your own legal advice and this is unlikely to be recoverable in full (or at all). If you have home or other insurance you should check with your insurer as your policy may cover you for legal fees.

Claims can be made online or claim forms can be downloaded from: https://www.gov.uk/employment-tribunals/make-a-claim

How much compensation could I get?

If you are successful at an employment tribunal then you are likely to be awarded both a basic award and a compensatory award to compensate you for your economic loss only. Unlike in discrimination cases you can’t recover compensation for injury to feelings – regardless of how much stress your dismissal may have caused you.

The basic award is calculated using a formula which takes into account your age, length of service (in whole years) and weekly pay (subject to a maximum). From 6 April 2018 the most you can be paid is £15,240.

A tribunal will consider the economic loss you have suffered up until the date of the tribunal hearing (i.e. it will look backwards) and the economic loss you are likely to suffer in the future (i.e. looking forward). Losses may include items such as lost salary and the value of other benefits and the costs of travelling to job interviews.

When assessing future loss, a tribunal will decide how long it might reasonable take you to find another comparable job. Obviously this is highly fact specific but it is unlikely to be more than 12 months in most cases.

An employment tribunal will expect claimants to be able to demonstrate that they have tried to “mitigate” the losses from their dismissal.

In short, this means looking for alternative work.

Note that compensatory awards are limited to the lower of 52 weeks’ salary or the prevailing cap (which increases in line with inflation each year). From 6 April 2018 the cap is £83,632.

How can we help you?

If your employment has been terminated or you think your job is at risk and you would like to know more about your employment rights in relation to unfair dismissal, talk to our employment law specialists today. We’ll help you figure out the best way forward for you.

Disclaimer

The content of this fact sheet is for information only and does not constitute legal advice. You should take specific professional advice in respect of your particular circumstances before acting on any of the information given.