My Employment Rights

Qualification

Unfair dismissal is a statutory claim that is available to:

Employees;

• who have been dismissed; and
• who have more than 12 months' continuous employment with their employer.

A dismissal occurs where:

• The employer terminates with or without notice;
• An employee's fixed term contract comes to an end; or
• Where the employer has acted in such a way as to breach the contract (constructive dismissal).

Fair Reasons

Employees who qualify have a right not to be unfairly dismissed and can only be dismissed for the following potentially fair reasons:

• Conduct - where the employee's behaviour warrants dismissal (ie theft, violence, disobedience)
• Capability - where the employee is not performing to the required standard either through: lack of ability/qualifications or ill health/incapacity
• Redundancy - where the employee is being dismissed for a legitimate redundancy reason.
• Legal - where law dictates that an employee is unable to perform their role
• Retirement - where an employee is dismissed because they have reached retirement age
• Some Other Substantial Reason (SOSR) - this is a catch all that covers other grounds that are capable of being justified. Examples would include re-organisations that do not amount to a redundancy, personality clashes or client pressure.

Automatically Unfair Reasons

In some cases, a dismissal will be automatically unfair. This where the dismissal is for one of the following reasons:

• membership/non-membership of a union;*
• taking part in union duties/activities; *
• exercising a right to be accompanied at a disciplinary, grievance or appeal hearing;*
• for certain health and safety activities;*^
• for making a protected disclosure ("Whistle-blowing");*^
• for reasons related to a transfer of undertakings
• for family friendly reasons;*
• asserting a statutory right.*

*In these cases, an employee does not require 12 months' continuous service.
^ In these cases, compensation is not subject to a cap on the amount that can be awarded.

Fair Process

Where a dismissal is for potentially fair reason, the decision to dismiss must be fair and reasonable and, in most cases, this will mean after consultation with the employee. What is appropriate will depend on the reason for dismissal and the particular circumstances. Often employers do not follow a fair process and this procedural failing can lead to liability, even if the dismissal was otherwise legitimate.

When considering the issue of fairness, employment tribunals cannot substitute their own view. It is generally a case of deciding whether the employer's decision is within the "band of reasonable responses" that a reasonable employer would take.

Complaints to Employment Tribunal

Where an employee is unfairly dismissed, the primary remedies available are:

• Re-instatement - being taken back on in the role that the employee had before dismissal;
• Re-engagement - being taken back on but in another role
• Compensation

Employees can choose what remedy they want. In most cases, the employee will be seeking compensation only.

Compensation

There are two main elements of compensation: a Basic Award and a Compensatory Award

A Basic Award is based on an employee's salary, age and length of service. Click here to see what your entitlement would be.

The Compensatory Award is an assessment of the individual's loss of earnings following dismissal. The precise amount therefore depends on how long the employee is out of work and the terms they obtain when they find another role. This can cover:

• Loss of earnings from the date of dismissal to the date of the hearing;
• Future loss of earnings after the hearing:
• Loss of pension rights
• Loss of statutory rights (usually about £250)

An employment tribunal may increase or reduce a compensatory award by up to 25% where there is a failure by either party to follow the dismissal procedures recommended by ACAS.

A cap of £66,200 applies to the compensatory award in most cases.

Employees are under a duty to mitigate their losses, by actively seeking alternative employment, and must be able to evidence this (copies or adverts, application letters and rejection letters). If they fail to take the appropriate steps, the employment tribunal may reduce any award of compensation.

An Additional Award can be made where an order for Re-instatement or Re-engagement has been ignored by the employer.

Time Limits

Claims for unfair dismissal must be brought within 3 months of the Effective Date of Termination. Claims brought outside this time may be accepted by the tribunal if the employee can show that it was not reasonably practicable to bring it within the time limit. However, the tribunals are extremely strict in applying the time limit.