We are specialist Unfair Dismissal solicitors

Rachel O'Connell explains Unfair Dismissal law
Video: Rachel O’Connell explains Unfair Dismissal law.

A dismissal is when an employer terminates an employee’s employment or a contract expires without renewal. Dismissal may be with or without notice. If dismissal is without notice, the employer must make a payment in lieu of notice, unless the dismissal is for gross misconduct. The minimum notice period (after one month’s service) is one week, or, if greater, one week for each full year of service, up to a maximum of twelve weeks.

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In order to pursue a claim for unfair dismissal in the Employment Tribunal the employee must normally have been employed for at least 2 years before the termination of their employment. There are some exceptions, for example, if the reason for dismissal was connected to pregnancy or maternity leave amongst others. A claim for unfair dismissal must be registered with ACAS (please see our page on Acas pre conciliation) within 3 months less one day of the date of the termination of employment. There are around 45,000 unfair dismissal claims lodged at the Tribunal every year.

An employer defending an unfair dismissal claim must show that dismissal was for one of the permitted ‘fair’ statutory reasons: capability; conduct; illegal employment; redundancy or ‘some other substantial reason’ (which includes, for example, a breakdown in relationships). If the employer can show that dismissal was for one of these reasons, the tribunal goes on to decide whether the employer acted reasonably or unreasonably in treating this reason as justifying dismissal.

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In a claim for constructive dismissal (a resignation), the employee must first prove the dismissal. This involves showing that:-

  • the employer was in fundamental breach of the employment contract;
  • the breach was the reason the employee resigned; and
  • the employee resigned promptly without ‘affirming’ the breach.

The first hurdle is usually the most difficult. Employers have no legal duty to act ‘reasonably’. A constructive dismissal is almost always an unfair dismissal.

If a dismissal is unfair, the employee usually receives an award of compensation called a ‘basic award’ (equal to a statutory redundancy payment) plus a compensatory award. Ordinarily the compensatory award ordered by the Tribunal can be no more than the equivalent of 52 weeks’ gross salary (up to a maximum of £76,5740 – a sum which is normally revised annually). Compensatory award is a sum of money which is designed to compensate the employee for their financial loss as a result of the dismissal. When calculating compensatory award, the Tribunal will take into account the employee’s attempts to find new employment, what earnings they now have and pension loss (if any).

These awards may be reduced if the employee’s conduct contributed to the dismissal or (if the dismissal was unfair for procedural reasons) he or she would possibly have been dismissed in any event (e.g. business closure).

Dismissals and tribunal claims are generally stressful. Stakes, both emotional and financial, can be high. Expert advice can minimise risk and expense.

If you think you have been unfairly dismissed please call us on 01483 303636 to see how we can help you.

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