Unfair Dismissal

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• Unfair Dismissal

What is unfair dismissal?

Unfair dismissal occurs where an employer dismisses an employee, and:

• It is not for one of the five potentially fair reasons for dismissal; or
• It is for one of the five potentially fair reasons for dismissal, but the employer has not followed a fair procedure

What are the five potentially fair reasons for dismissal?

The five potentially fair reasons for dismissal are:

1. Conduct – e.g. theft, violence, abuse of email procedures
2. Capability – e.g. the employer considers the employee is not able to do the job properly
3. Redundancy – e.g. the business closes, moves, or needs less employees to do certain work
4. Statutory restriction – e.g. a lorry driver loses his or her licence
5. Some other substantial reason – e.g. restructuring, a significant breakdown of relations, or the employee is in prison

What are the fair procedure rules?

Even when an employer can say a dismissal is potentially fair, they must carry out a fair procedure.  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. Employees ​are required to have been employed for two years continuously in order to be eligible to bring a claim for ordinary unfair dismissal. This includes being employed part time.

There are strict time limits to bring a claim.

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.

How compensatory awards work

• The compensatory award is calculated on the loss the employee has incurred as a result of being dismissed, which is capped to the lesser of a statutory limit (which changes anually) or a year’s salary
• 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

If you receive a form of complaint, or ET1, it is important that you observe the time limits. A company usually has 28 days to respond, and extensions are granted only in exceptional circumstances.