Generally, when an employee has over two years’ continuous employment, they have the right not to be unfairly dismissed. There are three different ways an employee can be dismissed, but this blog deals exclusively with termination by the employer and what an employer has to show to evidence such a dismissal was fair.
Who Can Claim Unfair Dismissal?
The right to bring a claim for Straightforward Unfair Dismissal is available to an employee who has been dismissed and, in most cases, has not less than two years’ continuous service. There are exceptions to the two-year rule which allows employees to pursue a claim for Automatic Unfair Dismissal claim, but these only apply in limited circumstances.
What Is A Fair Dismissal?
A dismissal will be held to be fair if: –
- The employer is able to show that the reason (or principle reason) for the dismissal was one of the five potentially fair reasons for dismissal. These are conduct/misconduct, capability/performance, redundancy, statutory illegality or breach of a statutory restriction and some other substantial reason (“SOSR); and
- The Employment Tribunal finds that, in all circumstances, the employer has acted reasonably in treating that reason as a sufficient reason for dismissal.
The Reason For Dismissal
The Employment Tribunal will consider whether a dismissal was fair or unfair and to do so they will apply/consider the following to the situation: –
- Can the employer show the reason for the dismissal?
- Does the reason fall into the meaning of conduct/misconduct, capability/performance, redundancy, statutory illegality or breach of a statutory restriction or for SOSR?
- If the employer has been able to establish a potentially fair reason for dismissal, the Employment Tribunal will then consider whether the employer acted reasonably in dismissing the employee for that reason:
- The Employment Tribunal will look at the circumstances (including the size and administrative resources available to the employer) to determine if there was a reason for dismissal.
- The Employment Tribunal will look at the fairness of the dismissal by considering whether the employer followed a fair procedure.
- The Employment Tribunal will apply the ‘range of reasonable responses’ which means would another employer also have adopted the decision to dismiss the employee?
Should You Appeal Against The Decision To Dismiss You?
Yes! It is so important to appeal against the reason to dismiss you. Think of it as your last chance to put forward all of the reasons why you feel the decision to dismiss was unreasonable. Additionally, it gives you the opportunity to put forward any mitigating reasons. Whilst the onus is on the employer to show the dismissal was fair and reasonable in all the circumstances, if you forget to mention something very important – the Employment Tribunal will not consider it as the employer did not have the opportunity to respond to it either.
Remedies For Unfair Dismissal
If you have been unfairly dismissed there are two different remedies you can seek.
- Reinstatement
The Employment Tribunal can order you be reinstated. A reinstatement order involves re-employing the employee on the same terms of employment, with no loss of pay, pension rights or continuity of employment.
- Compensation
In most cases, where an employee has been dismissed, they seek the remedy of compensation. This consists of a basic award and a compensatory award.
The basic award is calculated the same way as a statutory redundancy payment and so is based on a formula of age, length of service and gross weekly wage. The compensatory award is such an amount which the Employment Tribunal believes is just and equitable based on the financial loss the employee has suffered. The employee is under an obligation to mitigate their loss but it possible to claim up to 52 weeks’ net loss.
Time Limits
For claims of Unfair Dismissal, you have three months less one day from the effective date of dismissal to start the Employment Tribunal process. You start the Employment Tribunal process by initiating ACAS Early Conciliation. If your claim can be settled during ACAS Early Conciliation your claim will not proceed to the Employment Tribunal. However, if it cannot, you will be issued with an Early Conciliation Certificate to submit your claim to the Employment Tribunal within one month from the date of that Certificate.
Lincs Law Employment Solicitors Can Help You
We always hope the information on our website is helpful, but we are aware that the best assistance is to discuss your problem. If you would like a free consultation with one of the team at Lincs Law Employment Solicitors, please use the contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512 and we’ll be happy to help. Alternatively, you can read more about Unfair Dismissal here; https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/
Lucy Stones
Employment Solicitor
Lincs Law Solicitors
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