Unfair dismissal

If you have been dismissed, it can often seem unfair and indeed the reason for an employee’s dismissal and/or the way in which employees are dismissed can often be deemed to be ‘unfair’ and give rise to a possible claim.

Can all employees submit claims for unfair dismissal?

The general rule is that you must have worked for your employer for a continuous period of one year or more to gain the right to sue for unfair dismissal. If you have not worked for your employer for that long you will probably not be entitled to bring a claim although there are exceptions. There are several reasons for dismissal which are deemed to be ‘automatically unfair’ and employees dismissed for one of those reasons, which include pregnancy, do not need to have accrued one year of service to make a claim.

Employees under fixed term contracts can also claim for unfair dismissal if their contract is not renewed but ‘temporary’ workers cannot. The legal definitions relating to these types of employees are complex and legal advice should be sought if you are in doubt.

Why would a dismissal be deemed to be automatically unfair?

There are several reasons why a dismissal would be deemed automatically unfair, the majority of which relate to statutory rights which employees have. The reasons include (but are not limited to):

Pregnancy
Membership of a Trade Union
Health and Safety Issues
Asserting or attempting to assert a statutory right ie; the right to be paid the minimum wage

What valid reasons can my employer give for dismissing me?

There are six fair reasons for dismissing an employee:

CONDUCT – this would include theft, bullying of colleagues and being under the influence of alcohol or drugs at work. Misconduct must be serious or repeated on several occasions to be a fair reason for dismissal.
CAPABILITY – If you are unable to do your job, for example by reason of long term illness, being unable to keep up with the requirements of the job or being unable to work within a team your employer can dismiss you on the grounds of capability.
ILLEGALITY – Your employer can lawfully dismiss you if it would be illegal for them to allow you to continue doing your job. An obvious example of this is if a delivery driver loses his driving licence.
REDUNDANCY - Redundancy is potentially a fair reason for a dismissal if the employer relocates, needs fewer workers or restructures. There are specific procedures which must be followed in cases of redundancy. For further information please see our factsheet on redundancy.
RETIREMENT - From 1 October 2006 it became legal to dismiss someone who has reached the retirement age (usually 65) in certain circumstances. For further information see our factsheet on age discrimination. (This has now been repealed and from October 2011 it will be unlawful to dismiss an employee for reason of retirement).
SOME OTHER SUBSTANTIAL REASON – This section is much wider and allows employers to dismiss employees where there is a very good reason but which is not covered in any of the five sections above.

If your employer has dismissed you it must be for one of the six reasons described above and their decision must be considered to be a reasonable response to the situation. Your employer must also follow proper procedures.

If I think that I have been unfairly dismissed, what can I do?

CLAIMS FOR UNFAIR DISMISSAL MUST BE SUBMITTED TO A TRIBUNAL WITHIN 3 MONTHS OF THE DATE OF THE DISMISSAL. The time limits are strict and if you do not submit your claim within that time it is unlikely to succeed.

If you decide that you wish to make a claim and you are within time, you need to submit an ET1 claim form to the Tribunal. The forms can be found on the government employment tribunals website. The form must be carefully completed or it may be rejected by the tribunal and therefore you may wish to seek legal advice before submitting your claim.

If I am successful, what compensation will I receive?

If you are successful there are several remedies that the Tribunal can order, the most common of which is compensation. However, other remedies include reinstatement into your role if that is the outcome that you would like.

Awards for compensation may include the following elements:

The Basic Award – this is calculated in the same way as redundancy pay and is based on length of service and pay at the time of dismissal (see factsheet on redundancy pay). The maximum basic award is currently £12,000 which would be awarded if you have worked for your employer for a period of 20 years or more.
The Compensatory Award – this element will cover your loss arising from the dismissal and can include lost earnings (past and future), loss of reputation, loss of pension, loss of accrued statutory rights and loss of benefits. Compensatory awards are usually limited to a maximum figure which is presently set at £68,400.
An Additional Award for failure to reinstate may be awarded in cases where the Tribunal orders your employer to reinstate you but they refuse to do so.

The above information is not intended to be a complete or definitive statement of the law. For more information or advice please contact our Employment Law team.