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How To Deal With An Unfair Dismissal

Posted on 18/03/2021 under redundancy, Uncategorized,

Being dismissed from your employment is extremely stressful, especially in these uncertain economic times.  If you believe that you have been unfairly dismissed, you may be able to claim compensation in the Employment Tribunal.  Before doing so, you should speak to a Settlement Agreement Solicitor as you are likely to receive more compensation if you negotiate a Settlement Agreement with your employer and waive your rights to bring a future claim.

What is unfair dismissal?

An employee who has completed the qualifying period (currently two years) has the right not to be unfairly dismissed.  The Employment Tribunal is likely to judge that a dismissal was unfair unless:

  • The employer can show that the employee was dismissed for one of the five potentially fair reasons. These are capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction, or ‘some other substantial reason” (SOSR).  Common examples of SOSR include personality clashes, a breakdown in trust and confidence, and business reorganisation; and
  • The Tribunal concludes that the employer acted reasonably in dismissing the employee for the potentially fair reason.

In cases of misconduct or poor performance, an employer should follow the procedures set out in the Acas Code of Practice on Disciplinary and Grievance Procedures before formally dismissing you.  The Employment Tribunal must take the Acas Code into account when deciding whether an employer has acted reasonably.

When is a dismissal automatically unfair?

In some cases, dismissal is deemed automatically unfair.  Examples of where the Employment Tribunal will consider a dismissal automatically unfair include being dismissed in relation to any of the following:

  • pregnancy and childbirth;
  • parental leave;
  • health & safety reasons;
  • whistleblowing;
  • victimisation;
  • acting as a representative;
  • seeking flexible working;
  • jury service; and
  • taking part in protected industrial action.

In most cases, you do not have to have worked for your employer for at least two years to make a claim if your dismissal was deemed automatically unfair.

Who cannot claim for unfair dismissal?

The following people cannot claim for unfair dismissal:

  • Workers who are not employees (An employee is “an individual who has entered into or works under a contract of employment”).
  • Self-employed people.
  • Employees who have worked for their employer for less than two years unless the dismissal is deemed automatically unfair.
  • Employees who work outside of Great Britain (i.e Northern Ireland).

There are other bars to making a claim, for example, your employment contract was illegal, or you have signed a Settlement Agreement with your employer.  Your employment lawyer will quickly tell you if you qualify.

When can I claim for unfair dismissal?

You must make an unfair dismissal claim within three months less one day of the dismissal.

Section 111(2)(b) of the Employment Relations Act 1996 provides that the Tribunal may extend the time limit but only where it is satisfied that it was “not reasonably practicable for the complaint to be presented before the end of that period”.

How much can I claim for unfair dismissal?

If the Tribunal awards you compensation it will normally be made up of two parts:

  1. The basic award – this is based on a formula that considers your age, length of service and the amount of a week’s pay (subject to a statutory cap).
  2. The compensatory award – what the Tribunal thinks is just and equitable compensation for the financial loss you have suffered from being unfairly dismissed. This will include any salary, pension, and other benefits lost.

The Tribunal will expect you to take reasonable steps to mitigate your financial loss.

Your compensation may be uplifted by up to 25% if the Tribunal determines your employer did not follow the Acas Code if your dismissal was because of misconduct or poor performance.

The amount of compensation you receive is likely to be higher if you enter into a Settlement Agreement with your employer.  This is because you can negotiate for more money in exchange for waiving your rights to make a claim in the Tribunal.  Furthermore, you can ask for non-monetary benefits to be included in your Settlement Agreement, for example, an excellent reference, access to a career coach, and/or the right to keep your company laptop.

Have you been unfairly dismissed? Call Settlement Agreement Solicitors today on 0800 048 5667 or fill in your details below to request a call-back.