If you have been unfairly dismissed from your job, you may have a claim against your employer and may be entitled to compensation if the conditions in the Employment Rights Act 1996 are met.
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What is unfair dismissal?
Unfair dismissal claims arise where an employee who has completed the qualifying period service is dismissed in circumstances that are not one of the 5 potentially fair reasons set out in the Employment Rights Act 1996 (ERA 1996). In addition, dismissal for certain prescribed reasons are considered automatically unfair and in these situations an employer will not need to have served a qualifying period of employment.
In deciding whether a dismissal is unfair, pursuant to section 98(4) ERA 1996, the Employment Tribunal will also consider whether in all the circumstances of the case the employer’s actions were reasonable in treating one of the 5 reasons as adequate for the dismissal. The Tribunal will also consider the Acas Code of Practice on Disciplinary and Grievance Procedures(Acas Code) on the procedure an employer should follow prior to a dismissal in cases of below-standard performance or misconduct.
Who has the right to make a claim for unfair dismissal?
You have the right to claim for unfair dismissal if:
- You are an employee (section 94(1) ERA 1996): which is defined as an individual who works under a contract of employment (section 230(1) ERA 1996);
- You have been dismissed: dismissal must have occurred in one of the following 3 ways- (i)termination by the employer with or without notice (ii) a limited time contract expires, or (iii) constructive dismissal (note: a constructive dismissal is not always an unfair dismissal);
- You have completed the 2 year qualifying period of service (section 108(1) ERA 1996: to claim, an employee must have served 2 years continuous employment (there are special rules on events breaking continuity which we are able to advise you on) ). This period does not apply where dismissal is automatically unfair, where an employee is dismissed when they would qualify for paid medical suspension or where the employee has reservist duties;
- You worked in the UK (section 244(1) ERA 1996) (or your work had sufficient connection to Great Britain).
What factors make a dismissal unfair?
The Employment Tribunal will consider the fairness of the dismissal by asking your employer to prove the dismissal was for one of the following 5 reasons under section 98 of ERA 1996:
- Capability or qualification- for a dismissal to be potentially fair, an employer must be able to show that termination was due to poor performance in the job the employee was employed to do or for their ill-health (but not if the dismissal is considered a disability under the Equality Act 2010 when it may then amount to unlawful disability discrimination).
- Conduct- it would be potentially fair if the employee commits a single act of serious misconduct (for example: theft, unauthorised absence, violence, substance abuse, leaks of confidential information) or a series of less serious acts.
- Redundancy.
- Contravene a statute if employment continues- for example a dismissal is fair if the employer shows employment would contravene a statutory restriction for example where employment requires a driving licence and the employee is banned.
- Some other substantial reason (SOSR).
Are there time limits in making an unfair dismissal claim?
An unfair dismissal claim must be brought within 3 months of the effective date of termination. In certain circumstance, the tribunal may extend time further.
Examples of automatic unfair dismissal
In certain circumstances, there is no need for the minimum 2 year qualifying period if dismissal is deemed to be automatically unfair, for example where dismissal is because of:
- Whistleblowing;
- Trade union activities;
- Statutory employment right;
- Maternity or paternity leave; or
- Carrying out health and safety activities.
Remedies for unfair dismissal
There are a number of remedies that the Employment Tribunal can provide in circumstances where a dismissal is found to be unfair, including:
- Re-instate the employee;
- Re-engage the employee; or
- Pay compensation to the employee, which can be the statutory basic award (the maximum amount is £15,240) and the compensatory award (which can be considerable larger as in certain cases, there is no cap on the compensatory damages).
Book an Initial Consultation with a UK Employment Lawyer
If you are an employer, employee, senior executive, or HR professional and require advice on any aspect of UK Employment law, get in touch so our employment team can assess the legal merit of your case and provide you or your business with bespoke UK employment legal advice.
Please note that your legal rights may be subject to limitation and thereby irreversibly time-barred if you fail to take legal action or defend a claim in time, in particular for Employment Tribunal and Court proceedings. You are strongly advised to seek legal advice prior to taking any steps in the employment tribunal or court procedural process. Do not delay in seeking legal advice.
To contact a leading London Employment Lawyer call ☎ 02071830529. Email us on: [email protected]