Unfair Dismissal

An employee who has completed the applicable qualifying period of service, which is currently 2 years, has the right to raise a claim if they feel they have been unfairly dismissed.

The dismissal of such an employee will be unfair unless an employer can show that the reason or principal reason for dismissal was for one of the five potentially fair reasons under Sections 98 (1) and (2) of the Employment Rights Act which are:-

• capability or qualifications
• conduct
• redundancy
• breach of a statutory duty or restriction
• Some Other Substantial Reason (“SOSR”)

In determining such cases, a Tribunal will consider all the circumstances including the employer’s size and administrative resources and whether the employer acted reasonably in treating the reason as a sufficient reason for dismissal (Section 98 (4) ERA 1996.

In cases of misconduct or poor performance, the ACAS Code of Practice on disciplinary and grievance procedures set out recommendations as to the procedures employers should follow prior to dismissing an employee. Tribunals must take the ACAS Code of Practice into account when deciding whether or not an employer has acted reasonably in reaching the decision they did.

Dismissals for certain reasons are deemed automatically unfair and in most such cases, employees do not need a qualifying period of employment. These include dismissals for reasons connected to pregnancy or childbirth, health and safety activities, whistle-blowing or asserting a statutory right. In addition to these automatically unfair dismissals, dismissals which are connected with or as a consequence of a potential discriminatory reason also do not need any length of service.  The maximum compensation awarded in automatic unfair dismissal cases and in discrimination cases is uncapped.

An employee who intends to issue a claim for unfair dismissal must issue a Notice of Intention to claim within three months of the date of dismissal to an ACAS Early Conciliator.

Claims for unfair dismissal can only be brought in an Employment Tribunal.  If a claim for unfair dismissal proceeds to a Tribunal, the Tribunal will consider whether the employer reached a decision that another reasonable employer could have reached, ie. one that is in the “band of reasonable responses”.  An employee who is successful at a Tribunal can claim compensation, reinstatement or re-engagement.

If an employee is successful, the Tribunal, after coming to its decision, will then go on to consider what compensation to award, a Tribunal awards on two separate bases for claims of unfair dismissal, the first being a basic award which is calculated the same as a statutory redundancy payment which is based on the employee’s age, length of service and gross salary and then a compensatory award which is based on the employee’s net loss of earnings.  In normal unfair dismissal cases, the maximum award is the statutory cap which is currently £86,444, or 52 weeks gross salary- whichever is the lower. This is in addition to the basic award which can be ordered by the Tribunal which is currently up to a maximum of £15,750.

Historically, Employment Tribunals were aimed at employers and employees attending a Tribunal and seeking to resolve their dispute themselves. Over time, as employment law cases have become more and more complex and there has been appeal level case law and more statutes, Employment Tribunals have become more formal and attending without representation can be daunting, both for an employee and employer.

If you’re a Business Owner, Director, Senior Manager or HR Professional, call us today on 0161 684 6948 for a Free, No-Commitment, Confidential, Informal chat to discuss how we can help you solve any Employee Issues