Unfair Dismissal
Employees have the right not to be unfairly dismissed by their employer. Since 2013 for cases of ordinary unfair dismissal, an employee must have two year’s continuous service to bring a claim. There are some exceptions to this rule which can be complex but include being dismissed for pregnancy or maternity reasons, whistleblowing or asserting a statutory right. If you are not sure whether you will have continuous service to bring a claim and are unsure whether you fall within one of the exceptions you should take advice.
In order to fairly dismiss an employee, an employer must have a fair reason and follow a fair process. Without a fair reason (namely conduct, redundancy, capability, illegality or the rarer some other substantial reason) then the dismissal will be unfair. Even if the dismissal is for a fair reason, the employer must follow a fair procedure. What is a fair procedure will depend on the reason but in conduct cases there must be an investigation that meets the legal tests of reasonableness. In redundancy cases, there must be consultation with the “at risk” employee.
If you have been dismissed you should appeal if you are given the right to do so. If this is unsuccessful sometimes an employer will settle your case with you when you instruct a solicitor or when you use ACAS early conciliation which is now mandatory for almost all cases before you start the Tribunal process. The time limits for bringing a claim are strict and are three months from dismissal (without notice) or your last day if you worked or were on garden leave for your notice. This is called the Effective Date of Termination and you should always work from the earliest date. Time freezes once you start ACAS early conciliation and this may extend time but you should seek advice as the rules on limitation are complex. You should not allow any appeal against dismissal to delay taking advice as the clock is ticking towards your three month limitation.
People often talk about being “constructively” dismissed or having a constructive unfair dismissal claim. This is still a claim for unfair dismissal but rather than being expressly dismissed you will need to show you have been dismissed. Dismissal can occur where an employee resigns in circumstances whereby he/she was entitled to do so because of the employer’s conduct. This is normally due to a breach of contract by the employer whether of an express term of the contract or one of the implied terms such as mutual trust and confidence.
If you are successful in your claim at Tribunal you can ask for reinstatement (your old role back) or re-engagement (a different role on the same terms and conditions) or just compensation. Compensation for unfair dismissal is made up of a basic award and a compensatory award. The basic award is calculated in the same way as a statutory redundancy payment based on age and length of service and subject to the cap on weekly pay. A compensatory award is concerned with your losses subject to you making reasonable efforts to mitigate your loss. I am an experienced advocate in the employment tribunal having successfully brought a number of claims on behalf of employees mainly for unfair dismissal, breach of contract and discrimination claims. I have appeared in Tribunals all over the UK including Kent, Reading, Belfast, Leicester and Manchester.
My other role gives me a unique insight into the workings of the Tribunal, process and how best to argue the case for an employee. I can draft a claim and statement of case, take witness statements, advise on disclosure and the case generally as well as drafting lists of issues, schedules of loss and conducting the hearing itself. If you prefer to have a barrister conduct the hearing I can instruct counsel. I offer fixed fees for stages of the Tribunal process and for the hearing itself.
To obtain a quote for a specific case or to find out more please do not hesitate to contact me.
