Have You Been Unfairly Dismissed?

Your employer has told you that you are being dismissed. What can you do?

Appeal

The letter confirming your dismissal should tell you that you have the right to appeal internally against your employer’s decision to dismiss you and how you need to go about doing this.

It is important that you make use of this internal appeal procedure before considering any sort of litigation, even if you don’t think that your employer will change its mind.  This is because the Employment Tribunal has the power to penalise you if you unreasonably fail to appeal.  This happens by reducing any compensation that you may be awarded if you are successful with an unfair dismissal claim.  Further details are set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures (“ACAS Code”) and in our separate guide on disciplinary and grievance procedures.

ACAS Early Conciliation

ACAS (the Advisory Conciliation and Arbitration Service) is a free, independent and impartial organisation that can help to try to resolve the dispute between you and your employer without the need to bring proceedings in the Employment Tribunal.

In most cases, you will not be able to issue a claim in the Employment Tribunal unless you have referred your case to ACAS for early conciliation in the first instance.

You can start the early conciliation process either by contacting ACAS by telephone or by completing the early conciliation notification form online.  You will then be contacted by an ACAS conciliation officer who will ask you for some basic administrative details and whether you wish to engage in early conciliation.  ACAS will not contact your employer if you do not want them to do so.

If you don’t want to engage in early conciliation, or if the process does not resolve the dispute satisfactorily, you will be given an early conciliation certificate containing the reference number that you need to include with your claim form if you decide to issue proceedings in the Employment Tribunal.

Bringing an Unfair Dismissal Claim

Employees who have been dismissed and (in most cases) have 2 years of continuous service with their employer have the right to bring a claim for unfair dismissal in the Employment Tribunal.

When considering whether your dismissal was fair or unfair, the Employment Tribunal will consider:

(1)        Whether there was a fair reason for your dismissal; and

(2)        Whether your employer actually reasonably in all the circumstances.

The Potentially Fair Reasons for Dismissal

There are 5 potentially fair reasons for your employer to dismiss you:

• Conduct;
• Capability;
• Redundancy;
• Breach of a statutory requirement; and
• “Some other substantial reason”.

The Requirement to Act Reasonably

As well as being able to identify a potentially fair reason for dismissal, your employer must also be able to show that it was reasonable in all the circumstances to dismiss you for that reason.

In order to do this, your employer needs to be able to show that it followed a fair procedure before reaching the decision to dismiss you.  The requirements for a fair procedure vary according to the reason for your dismissal.

For example, when dismissing for misconduct, your employer will need to be able to show that it has carried out a reasonable investigation into the situation, allowing it to have formed a reasonable belief of your guilt.  It will then be for the Employment Tribunal to decide whether your employer acted reasonably in deciding to dismiss you on the grounds of your misconduct.

When dismissing for poor performance, your employer will need to be able to show that you were not performing to the standards required and that you had been offered appropriate training and support and given a reasonable chance to improve.

For dismissals on the grounds of redundancy, see our separate guide to redundancies.

Some types of dismissal will be automatically unfair.  For example, if you are dismissed for getting pregnant, or if you are dismissed because you ‘blew the whistle’ about your employer’s behaviour (see our separate guide to whistleblowing).

ACAS Code

The ACAS Code of Practice on Disciplinary and Grievance Procedures (“ACAS Code”) must be taken into account by an Employment Tribunal, where relevant, when it is considering whether or not your employer has fairly dismissed you.

Our separate guide on disciplinary and grievance procedures sets out the key aspects of the ACAS Code and what can happen if it is not complied with.

Compensation for Unfair Dismissal

If your claim for unfair dismissal is successful, you will be entitled to a “basic award” (calculated in the same way as a statutory redundancy payment, on the basis of your age, salary and length of service).  In addition, the Employment Tribunal has a discretion to award you a “compensatory award”, compensating you for any financial losses flowing from your dismissal.

Generally, the maximum compensatory award is the lower of the statutory cap (currently £74,200) or 52 weeks’ gross pay.  The cap does not apply in relation to certain types of dismissal, such as discrimination and whistle blowing.

The compensatory award could include your loss of earnings while you are looking for a new job, loss of any contractual benefits, and any expenses you incur in seeking new employment.  However, you are under an ongoing obligation to mitigate your losses by searching for new employment.  If the Tribunal decides that you have not taken reasonable steps to find a new job, it may reduce your compensation.

Your compensation may also be reduced in certain other circumstances, such as where the Tribunal concludes that you have contributed in some way to your dismissal, or where it decides that you would have been fairly dismissed in any event, had your employer followed a fair procedure.

Time Limit for Bringing a Claim

There are strict time limits in place for issuing Tribunal proceedings.  It is very important that these are stuck to because it is very rare for the Tribunal to consider claims that have been issued too late.  We can advise you about the time limits relevant to your particular case.

How Can We Help You?

If you need any assistance in this area, please contact a member of our team.