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Unfair Dismissal

While an employee may feel that his or her dismissal wasn’t “fair” the tests applied by the Employment Tribunal are more strenuous.

Length of employment

To be able to start proceedings for unfair dismissal the employee must have been employed by the employer for 12 months continuously. There are some specific exceptions to this. Examples of these are dismissal for whistle blowing and dismissal for a reason connected with maternity.

Claim to be within three months

Any proceedings have to be brought within 3 months of dismissal. So, if a person is dismissed on 4^th January the written claim must have been received by the tribunal on 3^rd April at the latest.

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Employee

Unfair dismissal proceedings may only be brought by employees. This usually rules out independent contractors but there are often arguments as to whether a person was an employee or genuinely self employed.

The tribunal’s considerations

The Employment Tribunal will consider whether there was a fair reason for dismissal and what that was, whether the employer followed a fair and correct process in deciding to dismiss and whether the reason for dismissal was one of the automatically unfair reasons.

Reasons for dismissal

The employer has to have a fair reason for dismissal. The tribunal has to identify the reason for dismissal. There are a number of specified potentially fair reasons. These are:

• A reason related to the capability or qualifications of the employee for performing work of the kind which he or she was by the employer to do. This typically includes not achieving targets and failure to do the job to the standard required.
• A reason connected with the conduct of the employee.
• That the employee was redundant.
• That the employee couldn’t continue to do the job without contravening the law in some way
• Some other substantial reason.
• Retirement

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Procedure

A tribunal will consider whether a fair procedure was used in dismissing the employee and whether the decision to dismiss was reasonable. In doing this it is required to have regard to the ACAS code of practice.It will consider the following:

1. Whether the employer investigated any alleged potential disciplinary matter. If possible the investigation, including any investigatory meeting should be conducted by a different person to the one who conducts any disciplinary hearing.
2. Whether the employee was notified by the employer in writing that it was conducting disciplinary proceedings and given the date, time and place of the disciplinary meeting. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.
3. Whether the employee was given an opportunity to be accompanied at the disciplinary meeting. Whether at the meeting the employer explained the complaint against the employee and went through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses.
4. Whether the employee was given an opportunity to appeal against the decision reached. If the employee appealed there would then be an appeal meeting similar to the disciplinary hearing which should preferably be conducted by someone other than the person who conducted the disciplinary.

It is not enough that the employer can show a fair reason for dismissal. The tribunal has to consider whether the employer acted reasonably or unreasonably in dismissing the employee for that reason. A major part of this consideration will be the procedure described above. The tribunal will also consider the size and administrative resources of the employer.

The tribunal will look at are whether the employer made sufficient enquiries and investigations into the situation.

With redundancy dismissals it will consider whether there was a redundancy situation and whether there was proper consultation with the employee.

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Compensation

Compensation is calculated by reference to two elements.

1. The Basic Award – A week’s gross pay subject to a maximum of £380 for each complete year worked. The maximum is £11400
2. The Compensatory award. This is to compensate for lost income and is subject to a maximum of £66200.

The award of compensation for Unfair Dismissal is to make good the employee's loss. The tribunal awards compensation for actual losses incurred plus future estimated losses. It follows that the date when a claimant obtained a replacement income or will obtain such income is very relevant. The heads of compensation usually used by tribunals are:

1. Immediate loss of earnings. These are losses incurred between the dismissal and the hearing at which the tribunal decides on compensation.

2. Future loss of earnings These will be estimated loss after the hearing e.g. future losses based on how long it should take the claimant to find alternative employment.

3. Expenses incurred as a consequence of the dismissal.

4. Loss of statutory protection rights. This covers the fact that the employee will be unable to bring unfair dismissal proceedings for a year after starting a new job.

5. Loss of pension rights

Making an employment claim

Making a claim to an Employment Tribunal is best done with the assistance of a qualified lawyer. I am a solicitor with years of experience of doing this.

A claim can be paid for in a variety of ways. The three most common are:

• Using legal expenses insurance - this is most often part of household insurance.
• No win no fee
• Paying at a set hourly rate

If you wish to discuss bring a claim ring Tony Wilkinson on 0115 8525813