Unfair dismissal

Unfair dismissal

If you are an employee with at least 2 years’ service you have the statutory right not to be unfairly dismissed – that is if the reason for the dismissal fails to fall within one of the “fair” reasons for dismissal.

Dismissals which are automatically unfair

There a number of situations in which a dismissal is considered automatically unfair. You are not required to have two years’ continuous employment to be eligible to make an automatic unfair dismissal claim.

Examples of automatically unfair dismissal scenarios include:

  • Dismissals relating to pregnancy, statutory maternity, paternity, adoption, parental, shared parental leave and time off for dependants.
  • Dismissals relating to whistleblowing; and
  • Dismissals relating to trade union membership.

Fair reasons for dismissal

For a dismissal to be fair, the reasons for the dismissal must fall into one of the five categories outlined below.

Conduct

It is potentially a fair reason to be dismissed for misconduct. The misconduct could either be one act of gross misconduct or a series of smaller acts of misconduct. Examples of misconduct include theft, disobeying reasonable request, dishonesty, and unauthorised absences from work.

Capability/qualifications

It is a potentially fair reason to be dismissed if you do not possess the correct level of capability or qualifications to carry out the work that you were employed to do. Capability dismissals fall into two categories; dismissals for poor performance and dismissals because of ill-health. It is important to note that if you have been dismissed on grounds of ill-health and it is related to a disability, the dismissal may amount to unlawful disability discrimination.

Redundancy

Redundancy is a potential fair reason for dismissal. In order for the dismissal to be fair there must be a genuine redundancy situation and a fair process must be followed.

Redundancy occurs in three situations:

  1. business closure of the employer;
  2. workplace closure; and
  3. a reduced requirement for the number of employees to carry out the work.

There are a number of circumstances where selection for redundancy is automatically unfair, for example being selected for redundancy because you have taken time out of work to attend jury service.

Illegality

If an employer makes a decision to dismiss you on the basis that your continued employment would be illegal then the decision is potentially a fair reason. For example, the decision to dismiss an employee who is employed as a delivery driver and is disqualified from driving is potential a fair reason to be dismissed.

Some other substantial reason

“Some other substantial reason” is another potentially fair reason for being dismissed. The purpose is to catch all other potentially fair reasons for dismissal which do not fall into the other specified categories.

In addition to having a fair reason, the employer must also follow a fair process and the decision to dismiss must fall within the range of reasonable responses of a reasonable employer in the same circumstances.

Remedies for unfair dismissal

There are three different remedies for successful unfair dismissal claims.

  1. Reinstatement to your same role with the employer;
  2. Re-engagement of your employment with the employer but in a different role; and
  3. Compensation.

 Compensation is the most common remedy sought by employees and consists of two main elements, the basic award and the compensatory award.

The basic award is based on a calculation which takes into account your length of service, age and pay. The purpose of the compensatory award is to put you back in the financial position you would have been in had you not been unfairly dismissed. The award is to cover you to the point you find new employment at the same rate or for a period which the employment tribunal thinks is fair and reasonable but is subject to a limit of years’ earnings.

There is a duty to take reasonable steps to reduce your losses for example secure new employment as soon as possible after being dismissed. Failure to do this could result in a reduction of the amount of compensation awarded by the tribunal.

There is also a duty to comply with ACAS Code of Practice which concerns the procedure followed by you and your employer. Failure to comply with the ACAS Code of Practice by either you or your employer may result in an adjustment of the award made.

If you have been dismissed but you feel that the decision to dismiss you was unfair please contact our employment team for further assistance. There is a time limit of 3 months to make a claim so it is important to act quickly to ensure that this deadline is not missed.

How can Verisona Law help?

Verisona Law has a team of employment law advisers who are happy to help you explore whether you have a claim and assist and can provide advice on how best to pursue it. Feel free to speak to a member of our team on 02392 98 1000.

Our team

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Sue Ball
Principal Lawyer, Head of Employment & Southern Region

Sue is Head of Employment & Southern Region. Praised for her combination of common sense and expert knowledge, she offers advice to commercial clients on all employment matters and has also handled complex cases for individual employees.

From defending claims for damages and allegations of breached restrictive covenants or franchise agreements, to helping a multi-national organisation achieve the favourable resolution of a claim from its former CEO, Sue has successfully represented clients in the civil courts and at employment tribunal.

Sue enjoys sharing her legal and HR knowledge with organisations in the fast-moving world of sport, particularly football. As an experienced member of Verisona Law’s Football and Sports Law team, Sue understands the issues that are specific to the industry and deals with the many legal elements involved in employment contracts for non-playing staff at a very senior level. She regularly gives advice and support to individuals in contractual negotiations and disputes with Clubs in the Premiership, Championship and lower divisions. She also provides employment and HR advice to Clubs.

Sue is a member of the Employment Lawyers Association, and is a specialist trained ADR workplace mediator.

Sue is recommended in the Legal 500 2019.

Client testimonials

“Sue was easy to deal with and offered all options available. Jane was in contact beforehand to tell me what information was needed and also Sue was prepared for our meeting. I cannot praise Sue and Jane enough and would have absolutely no hesitation in recommending Sue and her team.”
Mr B, February 2018

“I can thoroughly recommend Sue Ball who has provided me with very clear professional advice on a contractual settlement I needed assistance on. The advice was delivered in a very warm & friendly manner & I would have no hesitation in using her services in future.”
Mr Hadadda

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Jane Pethick
Team Assistant - Employment & Corporate & Commercial

Jane works as a Team Assistant to both the Corporate & Commercial and Employment teams. Jane provides day to day support transcribing documents and being the first point of contact for clients.

Jane started work as an Office Junior in Dyer Burdett, which later joined forces with Grey Purdue to become Verisona Law in 2008.

In her spare time Jane enjoys socialising with friends and family and spending time with her French Bulldog, Ernie.