UNFAIR DISMISSAL SOLICITORS
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If you’ve been dismissed and think it may have been unfair, we’ll help you to understand your rights and options, so that you can move on with your career.
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Our guide covers the 5 key questions we get asked most often about Unfair Dismissal claims, to help you decide your next steps. Your guide will be delivered to your email address.
UNFAIR DISMISSAL KEY POINTS
You may have a claim for unfair dismissal if you have been dismissed without a legally fair reason. This is different to the common sense use of fairness.
You must have been dismissed. In general, this is obvious, as your employer will tell you clearly, often in writing, that your employment has been terminated. Confusing language or words spoken in the heat of the moment may amount to a dismissal - it is important to get advice before starting a claim if the position isn’t clear. If it is unclear then you, the employee, must prove that you have been dismissed.
Your employer must prove that the dismissal was for a legally fair reason.
A claim must be made within three months of the date that your employment terminates. This includes the date of termination as day 1.
Unfair Dismissal is separate from Wrongful Dismissal, which is based purely on contractual terms, and Constructive Dismissal, which depends on you taking action in response to your employer’s conduct.
WHAT IS UNFAIR DISMISSAL?
You have grounds for an unfair dismissal claim if your employer has dismissed you without a legally fair reason.
The test isn’t fairness in the common sense meaning of the phrase; it’s whether there was a legally fair reason to bring your employment to an end.
It’s for your employer to prove that the reason for the dismissal was one of the potentially fair reasons that the law allows. If your employer can’t show that it had a fair reason to dismiss you, then the dismissal will be unfair.
The primary fair reasons are that:
you are guilty of misconduct
your aren't capable of doing your job
you lack a qualification necessary to do the job
your role is redundant
Dismissal may also be fair if:
your continued employment in the job would break the law
there is some other substantial reason, such as a clash of personalities or failure to adapt to new working processes, serious enough to justify dismissal.
Dismissal must also be a reasonable response. Even with a fair reason for dismissal, your employer must still have reasonable grounds for believing that it was entitled to dismiss you.
For example:
An employee is dismissed for hitting a colleague: an obvious example of misconduct. But if there is clear evidence that the employee wasn’t the one who carried out the assault, which the employer would have discovered had they investigated properly, the dismissal will be unfair.
A long-standing employee who is a few minutes late for work one day is dismissed for poor time keeping. Even if the employer has stipulated that lateness is considered to be misconduct, dismissing for a minor infringement of the rule is likely to be unfair.
Capability
Capability dismissals generally fall into two categories: ill-health and failure to do your job to a reasonable standard.
Ill-health in this context typically means your long-term absence for medical reasons places your employer in economic difficulty. Performance-related capability dismissals often occur after a prolonged period of under-performance.
If you have been dismissed for capability, it will depend on the circumstances of your case whether it is fair or not.
UNFAIR DISMISSAL AND DIISCRIMINATION
If you believe your dismissal was related to a protected characteristic listed in the Equality Act 2010, it may have been discriminatory. If so, you may be able to claim for unfair dismissal and discrimination. There are a few ways your dismissal could be discriminatory:
Direct discrimination: If you were dismissed because of a protected characteristic.
Indirect discrimination: If you were dismissed in relation to a policy or practice which has the effect of treating employees with a protected characteristic less favourably than others. It doesn’t matter whether your employer intends to discriminate, it is the effect of the policy that’s important. There may be times that indirect discrimination can be justified, for example where the policy is a proportionate or necessary way to achieve a legitimate aim.
Victimisation: If you were dismissed because you enforced your rights, or your employer believed you intended to. This could include if you brought a legal claim under the Equality Act or gave evidence at proceedings.
An experienced employment law solicitor can help you to understand whether your dismissal was discriminatory and what you can do about it.
What is a protected characteristic?
Race
Age
Sex
Sexual orientation
Marriage or civil partnership
Gender reassignment
CAN A REDUNDANCY BE UNFAIR DISMISSAL?
Redundancies occur most commonly if your employer no longer needs as many employees in a certain role or location. The decision to make redundancies is up to the employer and the law won’t interfere lightly.
However, your redundancy could be an unfair dismissal if your employer did not have the right to make redundancies or failed to follow a fair and legal procedure. Usually, unfair dismissal claims relating to redundancy are about:
whether you should have been selected for redundancy
the process followed to choose which employees were made redundant
that you weren't offered alternative work that was available.
Redundancy is different from other legally fair dismissals because you might have the right to statutory compensation.
If you are being made redundant, visit our redundancy page for more information.
FREQUENTLY ASKED QUESTIONS ABOUT UNFAIR DISMISSAL
How do I challenge an unfair dismissal?
If you believe you have been unfairly dismissed, you should appeal the decision and make use of your employer’s processes. However, your three months to bring a claim begins on the day of dismissal and is not extended by appealing. Be aware of the deadline, and if necessary seek legal advice alongside appealing the decision.
Your solicitor will need time to read through your case and prepare your claim , so seek advice in plenty of time.
How long do I have to claim for unfair dismissal?
You must make your claim within three months of the date that your employment effectively terminates. That includes the date of termination as day one. So, if the date of termination is, say, 26th April, the date by which you must filing a claim with the Employment Tribunal is 25th July. There are very few exceptions where the time may be extended.
Your deadline will allow for Early Conciliation (the mandatory procedure that must be followed before a claim can be started). You can find out more about Early Conciliation here.
Can I claim for unfair dismissal with under 2 years’ service?
Usually you will need to have worked for your employer for at least 2 years to be able to claim for Unfair Dismissal. However, if your dismissal was discriminatory or because of whistleblowing, you do not need to have 2 years’ service to make a claim.
Find out whether your dismissal may have been discriminatory or in breach of whistleblowing law.
Who can claim for unfair dismissal?
Only Employees have the right not to be unfairly dismissed. If you are not an employee, you will not be able to claim for unfair dismissal.
If you aren’t an employee, your rights will depend upon your status (e.g. worker, self-employed, apprentice, agency worker) and the terms of your contract. You may be able to claim for breach of contract if the other party did not follow the terms of your agreement. If your dismissal was discriminatory or due to whistleblowing, you should seek legal advice, as provisions under the Equality Act and whistleblowing regulations cover more than just employees.
What is the difference between unfair and wrongful dismissal?
Unfair dismissal is concerned with your statutory rights – these are rights you are given by law, rather than agreed in your contract.
Wrongful Dismissal is based purely on the terms of your contract, and so is a type of breach of contract. If you claim is just for wrongful dismissal and nothing else it can be heard in the County Court or High Court, where you have longer to bring a claim and compensation is not capped. However, if there is also a potential unfair dismissal claim then it must be heard at the tribunal.
Can I claim unfair dismissal if I resign?
You must have been dismissed to claim for unfair dismissal, so you cannot claim if you have resigned. However, if you resigned in response to a breach of contract by your employer then you may have a claim for constructive dismissal.
How long does an unfair dismissal case take?
Each case has its own facts, legal issues and evidence. Many cases don’t go through the full process and are either settled or withdrawn before the case reaches the final hearing.
The time your case takes will depend on the complexity of the case, the amount of evidence involved, the legal issues relating to the case and the likely lenghth of the final hearing. If you cannot settle your case, you will also need to wait for the tribunal hearing – how long this takes will depend on how busy your local tribunals are. As a broad rule of thumb it usually takes a year for a case to reach final hearing from its beginning. More complex cases can take longer.
Once your solicitor has looked at your case, they can advise how long it could take to resolve. Your solicitor’s priority is to resolve the case in your best interests, which includes helping you to balance reasonable settlements against the time that could be saved by settling.
Will my unfair dismissal case go to a tribunal?
Your employer may agree to settle before the case goes through the tribunal. You do not have to settle, but this may be beneficial as it will save you time and legal expenses. The settlement agreement will set out the terms you are agreeing to, which might include keeping the matter confidential, agreeing your reference for future employers, or making changes to the workplace.
What happens if I win an unfair dismissal case?
There are a several possible outcomes if your claim is successful. You will usually receive compensation – see the FAQ below for more information.
In discrimination cases, you may get a declaration from the tribunal judge that you have been discriminated against and a recommendation as to what action the employer should take to avoid the issue happening again.
You may ask the tribunal to order that you are reinstated in your role or re-engaged. This is quite rare as it depends upon your relationship with your employer.
How much compensation will I get for an unfair dismissal?
The potential compensation if your claim is successful depends on a number of things.
You can visit our Compensation and damages page for general information on unfair dismissal compensation, but we advise you to speak to specialist employment and unfair dismissal solicitors like Spencer Shaw for advice specific to your situation.
We will explain the remedies available to you, either through the ACAS and Employment Tribunal processes, or by negotiating an agreement with your employer. We will also tell you what the risks are.
How much does an unfair dismissal case cost?
Simple unfair dismissal and discrimination cases would likely cost around £5,000-£10,000 to go through the full tribunal process. More complex cases are likely to be in the range of £10,000-£25,000, particularly if the final hearing lasts more than one day. Complicated cases involving substantial amounts of evidence or complex legal arguments are likely to exceed £25,000. These estimates include VAT.
At your initial consultation your solicitor will provide you with a guide to the likely time and cost involved in your case and update this throughout our relationship. If anything happens that we feel is likely to impact on your costs, we will let you know.
Do you pay tax on unfair dismissal compensation?
Whether you pay tax on compensation depends upon what it is compensating for. Some types of payment are taxable - such as payment in lieu of notice or benefits you would usually receive. For termination payments, you can usually receive up to £30,000 without paying tax.
GET IN TOUCH
Do you have a legal matter you'd like to discuss with us? Get in touch using the details below or use the form here and a member of our team will be in touch to discuss your enquiry.
Address: Spencer Shaw Solicitors Limited
St Mary's House, 68 Harborne Park Road,
Harborne, Birmingham, B17 0DH
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