Winrow Solicitors
Winrow Solicitors Winrow Solicitors
Winrow Solicitors, North and Mid Wales
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Unfair Dismissal

Have you suffered an unfair dismissal?

Unfair Dismissal: if your employer has told you that you are being dismissed, you may well be devastated. If you feel the dismissal was unfair you will want to know what can you do?

A dismissal should only occur after a disciplinary hearing and if no hearing took place before the dismissal it is likely that it was unfair.

Appeal

We would always firstly advise you to appeal the dismissal in writing. 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. The dismissal letter should also say why you dismissed.

Your appeal letter should outline the reasons why you feel the dismissal was unfair. It is important to use the appeal process before considering any sort of litigation, even if you don’t think that your employer will change its mind. There are good reasons for doing this, firstly it will prevent your employer from arguing at an Employment Tribunal that had you appealed they could have reversed the dismissal. Also, 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.

ACAS Early Conciliation

If you decide make a claim to the Employment Tribunal you will firstly have to attempt conciliation with your employer. ACAS (the Advisory Conciliation and Arbitration Service) is a free, impartial organisation that will attempt to settle the dispute between you and your employer without the need to bring proceedings in the Employment Tribunal. This could be by way of a financial settlement or reinstatement.

If conciliation fails you will be issued with a certificate containing a reference number that will allow you to progress to a claim to the Employment Tribunal.

The easiest way of starting the early conciliation process is 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.

Bringing an Unfair Dismissal Claim

To be eligible to bring a claim for unfair dismissal to the Employment Tribunal you must be an Employee, have been dismissed (in most cases) and have 2 years of continuous service with your employer. It is also important to bring your claim within 3 months of your dismissal (there are reasons it can be more than 3 months but suggest you call us)

At the Employment Tribunal a Judge will determine whether your dismissal was fair or unfair, by considering the following:

Whether there was a fair reason for your dismissal; and

Whether your employer actually reasonably in all the circumstances.

Your employer can fairly dismiss you for 5 potentially fair reasons. These are:

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 side 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 behavior.

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?

If you need any assistance in this area, please contact us and have a free half hour assessment of your case.

To find out if your dismissal is unfair, we will need to check:

What your 'employment status' is - your rights depend on whether you're an employee or not

How long you've worked for your employer - you can usually only challenge a dismissal if you've worked there 2 years or more

Whether the law says the reason for your dismissal is unfair

We will check you’ve actually been dismissed

You can only challenge a dismissal if you can show it actually happened. You've been dismissed if your employer has done any of the following:

Ended your contract of employment, with or without notice

Refused to renew your fixed-term contract

Made you redundant, including voluntary redundancy

Dismissed you for going on strike

Stopped you from coming back to work after maternity leave

You’ll need evidence you were dismissed, such as an official termination letter, or emails and text messages from your employer.

You haven’t been dismissed if you’ve:

BEEN SUSPENDED

RESIGNED BY CHOICE

We will check your ‘employment status’

Your ‘employment status’ means whether you’re an employee, a worker or self-employed.

You only have the right to claim unfair dismissal if you’re an employee – this includes part-time and fixed-term employees.

Unfortunately, you don’t have any rights to challenge your dismissal if your employment status is:

Self-employed

An agency worker or classes as a 'worker'

A police officer or in the armed services

A registered dock worker

Working overseas or for a foreign government

A share fisher person

Sometimes it's not clear if you're an employee. Your employer might say you're self-employed or a 'worker' so they don't have to give you all your rights at work but there are a number of legal tests that an employment tribunal will apply to determine your true employment status.

We will check you’ve been dismissed for a reason that’s definitely unfair

Your employer should tell you why they’re dismissing you. If you’re pregnant or have worked there for at least 2 years, you’ve got the right to get a written explanation – this should be a letter or email.

The law says it’s always unfair dismissal if you’re dismissed because of:

an ‘automatically unfair’ reason

discrimination

If your dismissal is because of one or both of these reasons, you can challenge it and make an unfair dismissal claim.

If you don’t have a written explanation

We will check if it’s an ‘automatically unfair’ reason

It’s always ‘automatically unfair dismissal’ if you’re dismissed because you:

are pregnant or on maternity leave

have asked for your legal rights at work, eg to be paid minimum wage

took action about a health and safety issue

work in a shop or a betting shop and refused to work on a Sunday

are a trade union member and took part in trade union activities including official industrial action or you were acting as an employee representative

have reported your employer for wrongdoing, which is called whistleblowing

If you’ll have worked for your employer for at least 2 years when your job ends, it’s also automatically unfair if you’re dismissed because:

the business was transferred to another employer

you didn’t declare a spent conviction

Your employer can still dismiss you if you’re in any of these categories – but it can’t be the reason you’re dismissed.

It isn’t always clear whether your dismissal was for one of these reasons, so it’s a good idea to contact Winrow Solicitors for help.

Check if you’ve been discriminated against

You can also challenge your dismissal if it’s because your employer has discriminated against you.

It might be discrimination if you think you were dismissed because you’re:

pregnant or on maternity leave

from a particular race, ethnicity or country

married or in a civil partnership

a man or a woman

disabled

lesbian, gay, bisexual or trans (LGBT), or seen to be

have a particular religion or set of beliefs

older or younger than the people you work with

Your employer can still dismiss you if you’re in any of these categories – but it can’t be the reason you’re dismissed.

In practice, your employer may not always give you an honest reason for your dismissal. Contact us immediately if you feel the real reason could be automatically unfair, or discrimination.

If you were sacked for a different reason and you’ve worked for your employer for less than 2 years, you don’t have the right to challenge it. This might feel unfair, but it is unfortunately the law.

Call us for advice on 01286 872779 or send us a message

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