If you are an employer facing an claim from an employee for unfair dismissal or are an employee who has been unfairly dismissed please call or email us. Our employment lawyers have the specialist expertise and experience to help.
To claim unfair dismissal, which is an Employment Tribunal claim, you must have been continuously employed for 2 years or more at the effective date of termination.
We also advise employees who feel that their position is being made untenable by the employer or are being forced out or managed out on the legal position if they choose to resign and may claim constructive dismissal.
Many unfair dismissal claims also include claims for discrimination. It is often the case that employers are more worried about the discrimination aspect of such claims than the unfair dismissal part. Discrimination claims do not require a minimum length of employment and so a discrimination claim can be made related to a dismissal where the employee cannot claim for unfair dismissal, because he or she has not been employed for 2 years.
Common reasons for dismissals
Some of the common reasons for dismissals include :
- Gross misconduct – there is no definitive list of employee actions which would constitute gross misconduct but typically it is conduct by the employee which is so serious that formal or final warnings are not appropriate and the employer decides that dismissal is warranted for the conduct . Examples often include employee theft, fighting in the workplace, use of drugs at work.
- Redundancy
- Capability – this can either be negligence or incompetence by the employee or incapability due to long term or persistent illness. In both situations there will generally need to be a series of formal warnings given leading up to the final dismissal.
What makes a dismissal unfair?
A dismissal will be legally unfair where it does not meet the required legal test either on substance or procedure. The risk of a finding of unfair dismissal is often greater due to procedural unfairness rather than the employer reason for dismissing :-
- Fairness of reasons for dismissal – Employment Tribunals do not generally second guess a decision to dismiss an employer unless that decision is very obviously for no reason or a reason with no substance. Therefore, it can be difficult for an employee to succeed in many cases based on the actual decision to dismiss.
- Procedural fairness – employers are often found to have unfairly dismissed for failing to adequately or at all act in a procedurally fair way before dismissing. Employers need to follow their own policies and procedures and/or good practice as suggested by ACAS. Errors or omissions can include not giving the employer a right to be heard, access to evidence brought against them or no right of appeal, as examples.
Constructive unfair dismissal
An employee may feel that he or she has no alternative to resign. In resigning, that employee may have the right to be able to claim constructive dismissal. The key considerations an employee considering resigning and claiming constructive dismissal include :
Is there a genuine situation where your position is untenable? Has the employer acted in such away as to fundamentally destroy the employment relationship?
If you feel forced to resign, have you waited before acting? If you have waited too long, this is often considered legally questionable because your claim for constructive unfair dismissal is based on the employer having acted in a way which makes your position untenable?
Is it better to try and negotiate a departure? Sometimes negotiation may lead to a settlement agreement and some compensation to avoid a dispute. You may be able to leave in a slightly less hostile way and may be able to obtain a reference.
IF you resign the legal burden will be on you with a claim for constructive unfair dismissal in the Employment Tribunal.
Starting a claim for unfair dismissal – key considerations
Monetary awards – Claims for unfair dismissal will result in a basic award (effectively the same as a redundancy payment) and a compensatory award, an award for loss of salary. Consequently, there are many situations where an employee has been unfairly dismissed yet finds another job quickly where the loss is low. Employees are under a duty to actively mitigate their losses by seeking suitable alternative employment after dismissal.
Does the claim also allege discrimination? – this makes a significant difference because discrimination claims, if successful, can result in the Employment Tribunal awarding compensation. Employers are often wary of discrimination allegations both in financial terms but also possible damage to reputation in a claim for race, gender, disability or age discrimination. An unfair dismissal claim which also incorporates a discrimination claim may increase the chances of settlement. Proving discrimination is not easy and the onus generally is on the employee to prove it. This contrasts with unfair dismissal where the legal burden is neutral between the parties.
For further information on the issues raised, please contact Elliot Hammer at: eh@branchaustinmccormick.com
Branch Austin McCormick LLP
32 St James’s Street
London
SW1A 1HD
