What to do about an unfair dismissal.
There are 5 potentially fair reasons for dismissing an employee:
- Capability or Qualifications
- Statutory restriction
- 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.
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Dismissal for the following reasons will be automatically unfair:
- Pregnancy or childbirth
- Health and safety activities
The qualifying period of employment for bringing an Unfair Dismissal claim is 2 years, except in the case of an automatically unfair dismissal, where there is no qualifying period.
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 3 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.
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Frequently asked questions
If you have been dismissed in circumstances you feel are unfair, it's important to act promptly. Firstly, I would suggest speaking to ACAS. They're a government funded organisation, which is designed to be impartial and independent to help resolve and mediate disputes between an employer and an employee. In fact, using ACAS is compulsory it must be down before an employee can even consider employment tribunal proceedings. The idea being that it can be resolved without the need to take that further step. However, if it isn't resolved, it's important to be aware that there is usually a very strict time limit, often just three months from the date of dismissal within which to bring your claim. So, you must act promptly, and we would suggest to get expert advice to ensure that you don't miss any deadlines and that you can plead your case as fully as possible.
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 3 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 3 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 time spent engaged in conciliation.
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.
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Dispute Resolution Team
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