What is Unfair Dismissal?
.The starting point is there has to be a “dismissal”.
The law acknowledges there has been a dismissal when:-
- an employee’s contract is terminated with or without notice;
- an employee terminates the contract, with or without notice by reason of the employer’s conduct (this is known as “constructive dismissal” where you would usually resign);
- a temporary (fixed-term) contract comes to an end without its renewal.
As an employee, you have the right not to be unfairly dismissed. This right is, however, is generally subject to a minimum continuous period of service with your employer for 23 months and 3 weeks. There are some exceptions to this where no qualifying period is required.
Unfair dismissal occurs when you are dismissed without a potentially fair reason. The five potentially fair reasons for dismissal are:.
1) Capability – not being able to perform your job properly whether this is due to issues with your performance or due to your ill health/sickness absence.
2) Conduct – this includes poor attendance or failure to follow work process or instructions. Acts of” gross misconduct” can include theft and violence at work.
4) Breach of a Statutory Restriction – e.g. if you are a lorry driver who loses your driving licence you could be fairly dismissed, or you could be dismissed fairly if your continued employment would be in breach of the immigration rules.
5) Some other substantial reason – any reason that does not fall within the above 4 fair reasons could amount to “some other substantial reason”, but this does not mean it is easy for an employer to raise this. See below for some examples as to what can amount to “SOSR”.
Once your employer has established a potentially fair reason for dismissal, they then have the onus of showing that they have acted reasonably in treating the chosen potentially fair reason as a sufficient reason to justify dismissing you. In other words, your employer may have grounds for dismissing you based on your performance or conduct, but that doesn’t mean they have to do so.
Indeed, if the matter reached an employment tribunal, the test they would use is whether “in accordance with equity and the substantial merits of the case the dismissal was fair or unfair.” This is often known as the “band of reasonable responses” test – in other words, did the response of your employer fall within a band of reasonable responses of a reasonable employer having carried out a reasonable investigation. If a tribunal believes that no reasonable employer would have dismissed an employee for that offence, the dismissal will be unfair.
An essential ingredient required to make a dismissal fair is for an employer to follow a proper dismissal process. If therefore your employer would otherwise have a good reason to dismiss you, but fails to carry out a fair procedure, you may have a claim for unfair dismissal. Whilst procedural fairness is important though, you do though need to bear in mind that any damages you may be awarded at tribunal could be reduced on the basis that, even if your employer had followed a fair procedure, the outcome to dismiss you would have still been the same. This may or may not be an easy argument for an employer to run.
Automatic Unfair Dismissal
Your dismissal will be ‘automatically unfair’ (without having to consider whether your employer has carried out a fair procedure) in some circumstances including if the dismissal was connected with a health & safety reason, maternity or paternity leave, asserting a statutory right, whistle-blowing, participating in trade union activities, TUPE, or any discrimination claims. There is no minimum qualifying period of service that you need to have been employed for if you wish to make an unfair dismissal claim for any of the above reasons.
How do you know if your employer has acted fairly in dismissing you?
In considering whether your employer acted fairly in all the circumstances, the following is a guide:
Under the ACAS Code of Practice, if your employer has concerns about your performance, they should inform you of it and give you an opportunity to improve, as well as providing support and assistance in allowing you to do so. You should be provided with a number of warnings (usually, verbal, followed by one written and one final). If there are objectives to be set, these need to be made clear to you and they should not be unachievable. If a performance programme is coupled with disciplinary proceedings within which you may be dismissed, you should be informed in writing of this in advance.
The ACAS code recommends that an employer investigates all allegations of conduct, or gross misconduct and gives you the opportunity to respond to the same. You are entitled to be accompanied at any disciplinary meeting by a work colleague or trade union representative. A dismissal does need to be a reasonable or proportionate response by your employer. It may be, for example, that demotion or a final warning is a more appropriate sanction. Dismissal without warning by reason of gross misconduct is likely to only be fair in limited circumstances such as dishonesty, gross insubordination or alcohol abuse.
Some Other Substantial Reason
If your employer fails to consider the provisions in the ACAS code, this could result in an increase of 25% of compensation awarded to you if were you to bring a claim at an Employment Tribunal. Similarly, if an employee failed to follow the ACAS guidance (e.g. by failing to raise a grievance before issuing a claim) a decrease of up to 25% of the compensation awarded can be ordered by the Employment Judge.
Issuing a claim in the employment tribunal
You must issue a claim within 3 months less one day of your dismissal. This time limit is strictly adhered to and only in exceptional circumstances would a Tribunal allow this time to be extended.
Before you can issue your claim, you need to first notify ACAS under their “early conciliation scheme”. In fact, an employment tribunal will not let you issue your claim unless you have first utilised the scheme and received a reference number from ACAS once conciliation has finished. Your notification to ACAS “stops the clock” for the purposes of the 3 month time limit until the certificate is issued. Click here for further information on how the ACAS Early Conciliation Scheme works.
If you are successful in your claim, the Employment Tribunal may award the following:
1) Re-instatement – you are is able to return to work in the same role (this is rarely awarded);
2) Re-engagement – you can return to work in a similar role to what you carried out before being dismissed (again this is rarely awarded);
3) Compensation – this is usually made up to a basic award and a compensatory award. The maximum compensatory award is now limited to either 52 weeks’ actual gross pay or a statutory cap of £89,493 whichever is the lower. This figure was increased on 6th April 2021.
The basic award is calculated by taking into account the employee’s age, years of service and average weekly wage. The weekly pay figure is capped at a maximum of £544 per week from 6th April 2021 and the maximum number of years’ service that will be considered is 20. The award is calculated as follows:-
Years of service below 22 years of age, the weekly pay is multiplied by 0.5
Years of service between 22 and 41, the weekly pay is multiplied by 1
Years of service from 41 onwards, the weekly pay is multiplied by 1.5
The maximum basic award is presently £16,320.
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