If you’ve been dismissed by your employer, it can be a confusing, stressful time. It’s essential to know your rights: where you stand legally; whether your employer has acted within the law and whether you’re able to make a claim for unfair dismissal.
Have You Been Dismissed Fairly?
Unfair dismissal occurs when an employer dismisses their employee with more than two years of continuous employment and in doing so breaches the contract between the two parties.
An employer must disclose the reasons for dismissal. There are other situations where dismissal is automatically unfair, including if you’re dismissed for:
• Anything relating to your age, disability, race, sex, sexual orientation, pregnancy and maternity, religion or belief, gender reassignment or marriage and civil partnership
• Being a member of a union, or choosing not to be a member
• Performing activities as part of a union
• Being accompanied at a disciplinary employement hearing
• Performing certain health and safety duties
• ‘Whistle blowing’ protected information
• Demanding a statutory right such as pay, notice period or maternity pay
In these instances, you don’t require 2 years of continuous service in order to make a claim, and if your dismissal was on grounds of health and safety or whistleblowing there’s no limit as of the compensation that can be awarded.
However, there are also valid reasons for an employer to dismiss you:
• Conduct – Where you have not behaved appropriately
• Capability – Where you aren’t able to perform your working duties, whether because of ill health or lack of ability
• Redundancy – Where you have been dismissed legitimately through a redundancy process
• Statutory – Where you aren’t legally able to work in the role
• Retirement – Where you have reached retirement age
• (SOSR) Some Other Substantial Reason – Where the company finds another justifiable reason to dismiss you. SOSR isn’t defined in statute and so depends on relevant case law, but employees have been dismissed as a result of company reorganisations, clashes in personality or because of pressure from a key client.
Even if there are grounds for dismissal, the decision must be made fairly and done within the correct processes. This will usually involve consultation with the employee.
Often, an employer will have legitimate reasons for dismissing an employee but because the process isn’t dealt with fairly it’s possible to make a successful claim.
A Working Example
When considering this question it is important to check if the law will apply to YOU. The issue with Unfair Dismissal is that there can be situations which on the face of it seem unfair, however, they will not be considered as unlawful under section 94 of the Employments Rights Act 1996.
Example: You have been dismissed for poor performance but the company have not followed their disciplinary process when dealing with this matter. You have only worked at the Company for one year. What can you do?
From this example, it is clear that the employee has been treated unfairly. The employee has not been made aware of any performance issues or conducted a disciplinary in relation to the employee’s poor performance before dismissal.
In this circumstance, the employee will not have a claim for unfair dismissal.
Why?
The reason is simply because the employee has only worked at the company for one year.
In any unfair dismissal claim, it is necessary that you are an employee and have two years continuous service to be eligible to bring a potential claim for Unfair Dismissal. An employee who has less than two years’ service can be dismissed for any reason. Your employer does not have to follow a reasonable process to dismiss you.
Complaining to a Tribunal
If you think you’ve been unfairly dismissed, it’s possible to complain to a tribunal. If your claim is successful, there are three solutions:
• Being re-instated in your job
• Being appointed to another role within the same company
• Compensation
Usually compensation is the most popular option.
Compensation for Unfair Dismissal
Your compensation for unfair dismissal will consist of two different elements: the basic award and a compensatory award.
The basic award depends on your age, salary and how long you served the company for. It is identical to what you would be entitled to had you been made redundant.
The compensatory award takes a look at the earnings that you’ve lost between the dismissal and your hearing, and how much money you’re set to lose afterwards. It also accounts for your lost workplace benefits, overtime, pension and statutory rights, as well as any expenses involved in relocating for a new job.
In most cases, the compensatory award is capped at £66,200. All compensation is subject to income tax and National Insurance deductions.
What You Need To Do
During this process you need to prove that you’re attempting to limit your losses as a result of the dismissal. This includes applying for any potential new roles (and documenting your efforts). If you’re found not to have taken the necessary steps, then your award may be reduced substantially by the tribunal.
It’s also important to act quickly. A claim must be brought within three months of your last day of employment.
Other Potential Claims?
If you do not have a claim for unfair dismissal, this does not necessarily mean that you no longer have any other potential claims. Alternatively, you may have a claim in the form of discrimination, wrongful dismissal or some other specific reason which could give rise to an automatically unfair dismissal; such as you have been dismissed because you raised a health and safety concern, or you blew the whistle in regards to company wrongdoing, to list a few.
If you are dismissed within the first two years of employment, you are still entitled to be paid by your employer under statute and common law. You are entitled to your normal pay and benefits up to the date of termination including notice pay and any holiday pay you are entitled to but have not taken. If your employer fails to pay you, it can amount to wrongful dismissal.
Do You Want a Solicitor to Assist You With Your Claim?
It’s possible for employees to represent themselves at an employment tribunal, but it’s highly recommended that you seek the representation of qualified solicitors who can guide you through the process, advise on any legal loopholes and ensure that your interests are fully looked after.
If you’ve been dismissed from work and think you could make a claim for unfair dismissal, get in touch with our expert employment solicitors at Howells today.
