UNFAIR DISMISSAL

Every employee who has been employed for two years or more has the right not to be unfairly dismissed. If the employee is to be dismissed, then the employer must show that the reason for the employee’s dismissal (or at least the principal reason) falls within one of five categories set out in the Employment Rights Act 1996. If the employer can’t show good reason, then the dismissal will be unfair and the employee can bring a claim for damages.

In accordance with the Employment Rights Act 1996, a fair dismissal would be one based on:

• Capability. Where your health or abilities are not up to the demands of the role.
• Conduct. Where you are for instance constantly late, abusive to others, or frequently absent without could cause.
• Redundancy. Where roles no longer exist or there is a reduced requirement for a particular role or type of work, and you have been selected for redundancy based on fair criteria and a fair selection process.
• Statute. Where the continuation of your employment would contravene statute. For instance, if you need to drive in your employment but you have been banned from driving due to speeding.

Some other substantial reason. Where your dismissal did not fall within one of the above reasons but there was some other substantial reason why you were dismissed. Examples would include a breakdown of trust and confidence or where you were employed for a fixed term basis for a specific task. Each case would be determined on its own facts.

If you don’t agree with the reason provided by your employer, you can appeal the decision and/or bring a claim against them for unfair dismissal. Ultimately it would be up to the Employment Tribunal to decide whether the reason provided was fair or not depending upon the circumstances of the case. The Tribunal will need to decide whether the dismissal was within a ‘range of reasonable responses’ – which in other words means that your employer will need to show that they acted reasonable when dismissing you.

An unfair dismissal is where you have been dismissed in a way that is unlawful. Usually because one of the five fair reasons (set out above) do not apply or there has been a complete failure of due process. Constructive dismissal is where you are forced to resign in response to your employer’s conduct.

Yes. Even if your employer is terminating your employment for one of the five fair reasons, they must still follow the correct process. If they fail to do so, then you may still be able to bring a claim for unfair dismissal. This could be for instance where your employer has not followed a proper consultation or selection process in a redundancy situation. Alternatively, your employer may not have followed the ACAS Code of Practice when dismissing you based on misconduct or performance.

A dismissal will be automatically unfair (irrespective of your length of service) if:

• Your dismissal related to a health and safety issue that you became aware of.
• Your dismissal was because you asserted a statutory employment right, such as maternity or paternity leave.
• Your dismissal was because of you being a whistleblower.
• Your dismissal was because you were participating in trade union activities.
• Your dismissal was because of a business transfer.

If you have been unfairly dismissed from your employment, you need to act straight away. You only have three months, less one day, from the date you were dismissed to bring a claim. Before you can start a claim with the employment tribunal you must lodge your complaint with the Advisory Conciliation and Arbitration Service (ACAS) before the three months is up. This process is compulsory for most claims and must be completed before you can submit your claim to the employment tribunal.

Your compensation is made up of a basic award and a compensatory award.

1. Basic Award.

• The basic award is calculated by multiplying the length of continuous service (up to a maximum of 20 years), your age and a week’s pay (as at the date of termination of your employment).
• You receive one and a half week’s pay for each year of employment after the age of 41.
• You receive one week’s pay for each year of employment between the ages of 22 and 40.
• You receive a half week’s pay for each year of employment under the age of 22.
• The weekly pay used to calculate your basic award will normally be your normal weekly gross pay at the time you were dismissed up to a maximum of £571.
• The maximum basic award you can receive is £17,130.

 

2. Compensatory Award.

• The compensatory award is an amount that the Employment Tribunal considers just in all the circumstances having regard to the loss sustained because of your dismissal.
• The main elements are normally: loss of wages; loss of future wages; loss of any statutory rights; and loss of pension benefits.
• The maximum amount you can be awarded as compensation for unfair dismissal from 6 April 2022 is £93,878 (which is in addition to any basic award).