Unfair Dismissal

Can I make an unfair dismissal claim?

If your employer fires you without good reason, or fails to follow the company’s disciplinary or dismissal process properly your dismissal may be unfair. (or if they fail to follow the statutory minimum dismissal procedure in NI)

If you were forced to resign because of your employer’s behaviour, read more about constructive dismissal instead.

Likely grounds for an unfair dismissal claim:

The following reasons for dismissal are automatically unfair , regardless of any question as to whether the dismissal was unreasonable.:
  • pregnancy, including all reasons relating to maternity
  • family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
  • acting as an employee representative
  • acting as a trade union representative
  • joining or not joining a trade union
  • being a part-time or fixed-term employee
  • health and safety
  • unlawful discrimination (on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation)
  • pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage
  • public interest disclosure (whistleblowing)
  • asserting other statutory rights.

Here are some examples:
  • You asked to change your working hours
  • You refused to give up your statutory rest break
  • You joined a trade union
  • You took part in a legal strike, which lasted up to twelve weeks
  • You needed time off to take part in Jury service
  • You applied for family related leave (maternity, paternity, adoption)
  • You were on family related leave, which you were entitled to
  • You tried to enforce your right to receive working tax credits
  • You were forced to retire (compulsory retirement)*

*Compulsory retirement is fair, as long as your employer can objectively justify it. If you don’t think their justification is good enough, you can dispute it at the employment tribunal. Click here to read about age discrimination.

Usually, to have an claim, you must have been in your job for two years or more. But, certain things, like whistleblowing, are protected by unfair dismissal under two years.

The rule is, you need 23 months and 3 weeks of continuous employment with the same employer before you can claim unfair or constructive dismissal, unless one of the few exceptions applies. Automatically unfair dismissal is one of them.
If you are given notice of dismissal within 23 months and 3 weeks of your employment, you will not be able to claim for unfair dismissal unless it is automatically unfair. If you are given notice of dismissal after 23 months and 3 weeks of your employment, you will be protected from unfair dismissal, whether 'automatically unfair' or not.

Acas unfair dismissal compensation.

You may be able to settle out of court, the settlement should be based on the following calculations. Taking an unfair dismissal to employment tribunal can be very expensive.

Consider raising a grievance first.

Are you thinking of submitting a claim to the employment tribunal? read this article to help you make the right decision about whether to sue your employer.

If your claim is successful at the employment tribunal:

    The basic award
You will be paid a number of week’s pay for each full year of your employment, depending on your age in that year.
From 41
From 22 to 40 (inclusive)
Under 22
1.5 week’s pay per year 1.0 week’s pay per year 0.5 week’s pay per year
Your basic award for your unfair dismissal claim will be calculated on a maximum of 20 years employment, so the calculation works backwards from the effective date you were dismissed to get you the best rate.

The week’s pay is based on your weekly pay at the time of dismissal, but is subject to a statutory maximum, which is reviewed every year. Your solicitor will explain if your weekly pay calculation will be capped at the statutory maximum.

Unfair Redundancy

If you have been paid a statutory redundancy payment, the employment tribunal will reduce your basic award by the amount of your redundancy pay. If your employer fails to prove that the main reason for your dismissal was redundancy, the basic award will not be reduced.

If your selection for redundancy was unfair, this is unfair dismissal by reason of redundancy.

    The compensatory award
‘Such as the tribunal considers just and equitable in all the circumstances’
This award is compensation for any loss of earnings and any other losses caused directly by the dismissal.

It can include:
  • Loss of contractual pay
  • Loss of future pay
  • Loss of pension
  • Loss of contractual benefits
  • Loss of car allowance
  • Loss of statutory rights
  • Loss of insurance benefits
  • Loss of discretionary bonus or commission, if you reasonably expected to receive them

This award for unfair dismissal claims is capped at a statutory maximum, which is £93,878 where the effective date of termination is on or after 6 April 2022. Your solicitor will explain if your award will be capped at the statutory maximum.

There is no cap to the compensatory award in certain protected cases such as whistleblowing or discrimination.

You are responsible for minimising your losses. You will need to provide evidence for your attempts to find alternative employment since your dismissal.

If the dismissal was unfair because the correct procedure was not followed, but the tribunal find that you would have been dismissed anyway, they will reduce your compensatory award by up to 100%

If your behaviour (misconduct) contributed to the dismissal they can reduce your compensatory award.

    Reinstatement Or Re-engagement
Reinstatement means you get your old job back with the same contract, and no break in your employment.

Re-engagement means you get a new job from the same employer, with a similar contract. But, for a different job.

These remedies will not be ordered by tribunal where there is no job to go back to, or where the trust and confidence between you and your employer have broken down.

If either are ordered by the employment tribunal and your employer refuses, then they may be ordered to pay additional compensation of between 26 and 52 week’s losses. (this amount is subject to the statutory maximum)

How to make a claim
    Discuss the issue informally with your employer. Try and resolve the issue calmly and reasonably. Even if you do not think it will fix the problem, it can help to have made your employer aware of the issue before beginning a formal procedure.
    Raise a formal grievance, if you cannot find a solution informally. Appeal the outcome if it is unsatisfactory. Or; appeal your dismissal or disciplinary outcome.

Frequently Asked Questions

If you have been unfairly dismissed it is generally advised that you should first appeal within your employers internal procedure. However, if you believe the mutual trust has broken down beyond repair (and you do not want your job back), you should go directly to employment tribunal.

This is because, if your dismissal is deemed unfair in your appeal, then your employer must re-instate your employment. You will be paid in full for the interim and the dismissal itself 'vanishes'. If you do not then go back to work, then your employer can dismiss you fairly for refusing to do your job and you would not be able to claim compensation for the initial unfair dismissal. Source: Marangakis v Iceland Foods.

Facing your employment dispute alone can be a daunting experience, our solicitors are experts in employment law. We can arrange a consultation with a solicitor who will set a fee for drafting your letter, alternatively browse our downloadable grievance documents for a cost effective, DIY option.

If you'd like to instruct a solicitor, please get in touch with the following information.
    Have you been able to find another job?
    Date of the last breach of your employment rights
    Date you were dismissed
    A brief background of the alleged offences in the workplace
    A copy of your contract of employment
    A confirmation of your annual gross salary

Do you have an unfair dismissal claim?

If you need help handling a dismissal which you believe was unfair, get in contact with us and see how we can help.

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