What is unfair dismissal?
Unfair dismissal occurs where an employer dismisses an employee, and:
- It is not for one of the six potentially fair reasons for dismissal; or
- It is for one of the six potentially fair reasons for dismissal, but the employer has not followed a fair procedure
What are the six potentially fair reasons for dismissal?
The six potentially fair reasons for dismissal are:
- Conduct – e.g. theft, violence, abuse of email procedures
- Capability – e.g. the employer considers the employee is not able to do the job properly
- Redundancy – e.g. the business closes, moves, or needs less employees to do certain work
- Statutory restriction – e.g. a lorry driver loses his or her licence
- Retirement – e.g. employee reaches 65, and was warned in advance by their employer this would be the retirement age
- Some other substantial reason – e.g. restructuring, a significant breakdown of relations, or the employee is in prison
Note that from the 1st October 2011, the default retirement age will be abolished and retirement will not be a potentially fair reason for dismissal.
What are the fair procedure rules?
Even when an employer can say a dismissal is potentially fair, they must carry it out fairly. ACAS has a code of conduct for what it considers employers should do when dismissing for conduct or capability or for some other substantial reason.
Are there any time considerations?
Yes. For most situations, an employee must have been employed for one year continuously before they can claim for unfair dismissal. This includes being employed part-time.
The employee must present the claim to the tribunal within three months of the date their employment was terminated.
Constructive dismissal and unfair dismissal
Sometimes an employer’s behaviour is so bad that employees feel they have no choice but to leave (constructive dismissal). In certain circumstances, this situation can also lead to an unfair dismissal claim.
What remedies are available for unfair dismissal?
A tribunal can award compensation through the basic award and the compensatory award.
How basic awards works
The basic award provides an amount depending on the employee’s age and their length of time in employment. It is broken down as follows:
- One and a half week’s pay for each year for employees aged 41 and over
- One week’s pay for each year for employees aged 22 to 40
- Half a week’s pay for each year for employees aged 21 and under
The maximum amount of years calculated is 20, and the level of a week’s pay is subject to statutory limits. From February 2011, this is £400.
How compensatory awards work
- The compensatory award is calculated on the loss the employee has incurred as a result of being dismissed
- That means the length of time it takes them to look for another job is taken into account
- A Tribunal can also order that the employee is reinstated in the business
Helping you decide on potential claims
It is important that you properly consider all the facts surrounding a dismissal or potential dismissal. Spratt Endicott offers an initial meeting with you, at a fixed price, to discuss the facts and decide whether or not there is a potential claim.
Getting in touch
For more information on our Unfair Dismissal service, please contact Carol Shaw on 01295 204140 or email cshaw@se-law.co.uk