What is unfair dismissal?
Unfair dismissal is ending an employee’s employment without a fair reason and/or without a fair process, making it an unlawful termination.
When considering ending someone’s employment, an employer can only dismiss for one of five potentially fair reasons:
- Capability (covering both performance and ill health)
- Breach of a statute
- or ‘some other substantial reason’, which can cover various situations such as a breakdown in the employment relationship.
Who can claim unfair dismissal?
To make an unfair dismissal claim an individual must be an employee. The right does not extend to agency or casual workers or those who are self-employed.
The employee must have at least two years’ continuous service with their employer to bring a claim for unfair dismissal or constructive unfair dismissal.
What happens if I don’t qualify for unfair dismissal?
Whilst claims for unfair dismissal would normally require two years’ continuous service, there are certain situations in which there is no minimum service requirement to bring a claim.
These include, amongst others, ‘automatic’ unfair dismissals for whistleblowing, making a health and safety disclosure, discrimination related to a protected characteristic (e.g. sex, age, race, etc.) or wrongful dismissal for asserting a statutory right.
Unfair vs constructive dismissal
Unfair dismissal is the unlawful termination of an employee’s employment. Constructive unfair dismissal is when the employee resigns because their employer’s conduct has been so damaging to the relationship that it can be regarded as a breach of contract.
Most commonly, constructive dismissal will include situations surrounding unpaid wages, grievances that have not been adequately dealt with or fundamental changes to terms and conditions without the employee’s agreement.
Employers should always ensure that grievances and other issues are dealt with promptly. Employees should also consider carefully before resigning and claiming constructive unfair dismissal and seek advice before doing so.
How to bring an unfair dismissal claim
It is important that employees who have been unfairly dismissed act quickly, as there are strict time limits of three months less 1 day from the date of termination of employment to bring an unfair dismissal claim.
Mandatory ACAS Early Conciliation must be commenced before submitting a claim. Once started, this puts the three-month time limit on hold for the period early conciliation is taking place.
Conciliation is a form of mediation aimed at enabling the employee and employer to reach an amicable resolution without either party having to proceed to presenting and defending a claim in the employment tribunal.
Conciliation can be ended at any stage if either party wishes. If one party withdraws the mediation will end and ACAS will issue an early conciliation certificate. The employee can then submit their claim form to the employment tribunal.
We advise that employees seek legal advice on their specific situation from specialist unfair dismissal solicitors who have experience in assisting employees through the ACAS process and submitting their claim in the employment tribunal.
What unfair dismissal compensation could I expect?
If successful in an unfair dismissal claim, an employee can expect to receive a basic award which is the equivalent to a statutory redundancy payment. This is based on their weekly pay (subject to a statutory cap), age and length of service.
They will also be awarded a compensatory award which aims to compensate them for any losses caused by the termination of their employment, such as loss of earnings for the time they have been out of work.
An employee is expected to do what they can to find another job and mitigate or reduce their losses. When considering how much to award, an employment tribunal will consider how long it was reasonable in the particular circumstances for the employee to be unable to find another job.
Why choose SAS Daniels
Our employment law solicitors and advisors have extensive experience in representing both employers and employees in unfair dismissal cases at tribunal.
The team is well-equipped to advise on all aspects of a claim and can assist from the very early stages all the way through to representing clients at final hearing.
We take time to get to know your individual needs and work with you to reach the most appropriate solution to protect your business or individual interests.