Unfair Dismissal Solicitors in Essex – Romford, Brentwood, Upminster
What is an Unfair Dismissal?
The following are potentially fair reasons for dismissing an employee:
- Capability or Qualifications
- Conduct
- Redundancy
- A legal restriction – for example, someone who is employed as a driver loses their driving licence
- Some other substantial reason
Whilst these may seem quite straightforward, dismissals are a minefield for employers. A fair procedure must be followed (even in the most clear-cut cases of gross misconduct) or the employer is at risk of a claim for Unfair Dismissal.
What Happens During an Unfair Dismissal Hearing?
Mullis & Peake Services in Unfair Dismissals cases
If you are an employee who has been dismissed, our experienced team can assess the circumstances around your dismissal and advise as to whether you have a claim. The time limit for issuing an unfair dismissal claim is three months from the date of dismissal – you should not delay in seeking advice.
If you are an employer, we can advise prior to the dismissal to minimise your risk. If a claim is issued against you, our team can provide expert advice and representation in the Employment Tribunal.
Types of Unfair Dismissal
Automatically Unfair Dismissals
A dismissal will be automatically unfair if the main reason for the dismissal is one of the following:
- Making a flexible working request
- Being pregnant or on maternity leave
- Asking for family leave
- Being in a trade union
- Taking part in industrial action
- Asserting a legal right
- Doing jury service
- Blowing the whistle
- Taking action, or planning to take action, about a health and safety issue.
The qualifying period of employment for bringing an Unfair Dismissal claim is two years, except in the case of an automatically unfair dismissal, where there is no qualifying period.
Fair vs Unfair Dismissals
An automatically unfair dismissal can never be rendered fair, no matter what procedure is followed. However, a potentially fair dismissal can become unfair if the correct procedures aren’t followed.
Constructive Dismissal Explained
Definition of Constructive Dismissal
Constructive dismissal occurs if an employee feels that they have no choice but to resign, because of something that their employer has said or done. The reason for resignation must be extremely serious in order for a claim to succeed.
Role of Constructive Dismissal Lawyers
Any employee who is considering resigning and claiming for constructive unfair dismissal should seek specialist legal advice. These cases are often complex, and it can be difficult to persuade an Employment Tribunal that you had no choice but to resign. Timing and the way in which you resign are very important.
Role of Unfair Dismissal Solicitors
What Do Unfair Dismissal Solicitors Do?
If you are an employee and you believe you have been unfairly dismissed, a specialist solicitor can review your case and advise as to your chance of success. They can also file a claim on your behalf, and assist you as the claim makes its way through the Tribunal system.
If you are an employer facing an unfair dismissal claim, a specialist solicitor will be able to prepare your defence and represent you during the proceedings.
Benefits of Hiring an Experienced Unfair Dismissal Lawyers at Mullis & Peake
Mullis & Peake Experience with Unfair Dismissals
At Mullis & Peake we have in excess of 20 years’ experience in advising both employers and employees in relation to unfair dismissals.
Claiming for Unfair Dismissal
Steps to File a Claim for Unfair Dismissal
If you have appealed against your dismissal, and the appeal did not succeed, the next step is to refer the matter to ACAS for Early Conciliation. During the Conciliation period, ACAS will work with employer and employee to see if settlement can be reached.
If the Early Conciliation does not result in a settlement, the employee will then have to begin their Tribunal claim by filing for ET1 with the Tribunal.
Time Limits for Filing Claims
The time limit for starting an unfair dismissal claim is 3 months less one day from the date that employment ended. Time will not run during any period of Early Conciliation. It is vital that the deadline is not missed as an extension of time will only be allowed in exceptional circumstances.
Employment Law Enquiry
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Grounds for an Unfair Dismissal Claim
Valid Reasons for Claiming Unfair Dismissal
Whether or not you have a valid unfair dismissal claim will depend upon a number of factors. You should seek advice from a specialist solicitor, who will be able to tell you whether or not you have a valid claim.
Common Scenarios Leading to Claims
It is very common for an employer to have a genuine reason for wanting to dismiss an employee, but failing to follow a fair procedure, rendering the dismissal procedurally unfair.
Sometimes an employer will want to dismiss someone because they are thought to be a troublemaker, or their face simply doesn’t fit, and will fabricate capability problems to try and justify terminating their employment.
Compensation for Unfair Dismissal
How Compensation is Calculated
The main elements of compensation awarded by the Tribunal are calculated as follows:
The Basic award is calculated in the same way as a statutory redundancy payment. The Compensatory award is designed to compensate the employee for the time that they were not working following their dismissal.
An employee may also be awarded compensation for the loss of their statutory rights, lost pension contributions and other benefits.
Factors Affecting Compensation Amounts
Compensation may be reduced if the employee’s conduct contributed towards their own dismissal, or if the dismissal was procedurally unfair but the employee would have been dismissed even if a fair procedure had been followed.
Compensation may be increased if the employer failed to follow a fair procedure and/or the ACAS Code of Conduct.
Employment Tribunal Process
Overview of the Employment Tribunal System
The Employment Tribunal is the body responsible for deciding disputes between employees and employers. This covers unfair dismissal claims, claims for discrimination, and a variety of other employment-related claims.
Cases in the Employment Tribunal might be decided by a Judge sitting alone or, for more complex cases, by a panel of three which will include a Judge, and two lay representatives, who will not be legal qualified but who will have experience relating to the work-place.
Preparing for an Employment Tribunal Hearing
In most cases, the Tribunal will hold a preliminary hearing. At the preliminary hearing, the Tribunal will set out the steps that each party needs to take to prepare for the final hearing. This will usually include sharing copies of the documents that the parties want to rely on, as well as exchanging witness statements. If you have instructed a solicitor to represent you, they will guide you through the required steps and make sure you are ready for the final hearing.
What is ACAS?
ACAS (the Advisory, Conciliation and Arbitration Service) is a body that aims to promote good relations between employers and employers. They provide free advice on employment matters, and can help parties to an employment dispute reach settlement.
How ACAS Can Help in Unfair Dismissal Cases
ACAS provide free advice to both employees and employers. ACAS can also try and help the parties to the dispute to reach agreement, either before the claim is issued (at the Early Conciliation stage) or at any point up to the final hearing.
Discrimination and Unfair Dismissal
Link Between Discrimination and Unfair Dismissal
A dismissal may be discriminatory if the reason for the employee being dismissed is linked to a protected characteristic. It is not enough that the employee has a protected characteristic – the employee will need to show that this was the real reason for their dismissal.
Legal Protections Against Discrimination
The Equality Act 2010 provides protection from employees against being subject to a detriment because they have a protected characteristic. This includes protection against discriminatory dismissals.
Differences Between Wrongful and Unfair Dismissals
Wrongful dismissal occurs when an employer breaches the contract of employment when dismissing the employee, for example but failing to pay their notice entitlement.
Employer Responsibilities in Termination Processes
When dismissing any employee, the employer must follow a fair procedure. This allows the employee to try and avoid dismissal, for example, if capability is an issue the employer should give an opportunity for performance to improve. If the issue is one of conduct then the employee must be given the opportunity to answer the allegations against them.
Once a decision has been made to dismiss, the employee must be given the opportunity to appeal.
Upon termination the employer must ensure that the employee receives all payments they are legally entitled to.
Frequently Asked Questions
The first step should be to appeal against your dismissal. If your appeal is not successful then you should seek advice from a specialist solicitor.
If an unfair dismissal claim is successful, the employer will be ordered to pay compensation. In some cases the employer may be ordered to give the employee their job back, however this is uncommon.
The best way to prevent unfair dismissal claims is to have up-to-date capability and disciplinary policies, and make sure that they are followed . It is also wise to seek legal advice before dismissing an employee to ensure that the proper procedure is followed.
If an employer receives notice of an unfair dismissal claim, they should seek specialist legal advice as a matter of urgency. The Tribunal allows 28 days for the employer to respond to the claim and so the sooner a solicitor is instructed, the better.
It is vital to keep records of all dismissals, including evidence of why the employee was dismissed, and the procedure that was followed.
If an employer loses an unfair dismissal claim, they will be ordered to pay compensation to the employee.
There are different time limits depending on the type of claim that is being pursued, but as a very general rule, the majority of claims need to be brought within three months of the date of the act complained of. For example, if you believe you have been unfairly dismissed, the time limit would normally be three calendar months from the date of dismissal. If in doubt, always start from the earliest incident or trigger for a claim.
You should also be aware that an Employment Tribunal claim cannot be brought until you have attempted early conciliation through ACAS (Advisory, Conciliation and Arbitration Service). ACAS act as an impartial intermediary to help resolve a dispute. If conciliation is not successful and you still need to bring an Employment Tribunal claim, where both parties have actively engaged in the process, you can usually obtain a lawful extension of time for lodging the claim by the same period of
Parties can represent themselves in the Employment Tribunal. However, it can be confusing, stressful and time consuming – instructing a solicitor to represent you can make things easier.
You will need evidence to show either that your dismissal was not justified, that a fair procedure was not followed, or both. This might include minutes from the meetings you had with your employer, and statements from your colleagues.
We always work with you to calculate a range of awards a Tribunal might make as early as possible in a case as we understand it influences your decision whether to pursue a claim.
Generally speaking, for successful unfair dismissal claims you may be able to recover a basic award equivalent to your statutory redundancy entitlement (which is based on your age, salary and length of service). The employee may also be entitled to a compensatory award for reimbursement of actual financial losses (e.g. loss of salary and benefits), subject to a cap.
From a statistical point of view, the median unfair dismissal award made by an Employment Tribunal (as published by the Ministry of Justice) for the financial year 2017/18, was £8,015, with the average award £15,007. For successful claims of discrimination, the compensation will be determined by a Tribunal based on the severity of the individual case. The average award made Employment Tribunals for the financial year 2017/18 ranged from £5,074 for religious discrimination, up to £30,698 for disability discrimination.
Mullis & Peake have solicitors in employment law ready to help you. Contact us online today or call us on 01708 784000.
Alternatively, request a call back to have one of our experts contact you at a time that suits.
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Holly is a Member and Head of Mullis and Peake’s Dispute Resolution Department
Martyn is our Chairman and the firms' Compliance Officer for Legal Practice
