Employment Law: Unfair Dismissal
If you have been dismissed from work, it can be a very stressful time. This is a short introduction to some of the basic facts surrounding unfair dismissal – if you have questions about any of the information here or would like some advice, please contact us at Gordon Dean Solicitors – we are here to help.
What is disciplinary action?
If your employer is unhappy about your conduct or your work, they may take disciplinary action against you. Common reasons for disciplinary action to be taken are standard of work, absence and repeated lateness to work, and behaviour at work. In the worst case, disciplinary action can lead to dismissal.
When dismissing or disciplining you, there are certain procedures your employer must follow. Most employers have their disciplinary procedure set out in writing, and it may involve the following steps:
- An informal chat to identify if disciplinary action is required
- An investigation in which you and others might be interviewed
- Sending you a letter setting out the problem
- Arranging a formal meeting with you (you have the right to ask for someone to accompany you to this meeting e.g. a colleague or trade union representative)
- Telling you their decision, in writing
- Giving you the right to appeal the decision
I’ve been dismissed from work, what should I do?
If you think you have been unfairly dismissed, you can appeal the dismissal through your employer’s disciplinary or dismissal procedures. You can also get help from ACAS to resolve the issue through mediation or conciliation, and speak to your trade union representative if you are a member of a trade union. Keep copies of any letters you send, and written notes of any meetings and telephone conversations.
If you are unable to come to an agreement with your employer, you can take your case to an employment solicitor.
What is ACAS Early Conciliation?
If you are not happy with your employer’s decision to dismiss you, you may want to make a claim to an employment tribunal. In most cases, you must first notify ACAS (the Advisory, Conciliation and Arbitration Service) of your intention to lodge an employment tribunal claim, and they will offer you the opportunity to use Early Conciliation. Early Conciliation is an opportunity for you and your employer to settle the dispute without going to court. In most cases it is a legal requirement and a tribunal claim will not be accepted unless you have first gone through the Early Conciliation process and Acas has issued a conciliation certificate. Find more information about the Early Conciliation process here.
How can a solicitor help?
A solicitor can help by explaining your options, letting you know if you have a legal case against your employer, and helping you decide whether your case is worth taking further. A solicitor can also help you to set out your case. If you are happy to negotiate directly with your employer, your solicitor can offer advice on the best way to go about doing this, or alternatively try to negotiate a settlement for you. If the problem cannot be solved directly with your employer, a solicitor can prepare your case and represent you at an employment tribunal.
What is unfair dismissal?
If you have been employed for two years, a dismissal could be unfair if: your employer does not have a good reason for dismissing you, or has not followed the company’s disciplinary or dismissal process. Legitimate reasons for dismissing you can include your conduct, your capability or qualifications for the job, or redundancy.
A dismissal could be unfair for many reasons, including:
- if your employer did not give you a chance to put across your side of the story
- if your employer did not give you an opportunity to improve your performance
- if your employer did not follow their disciplinary procedure
- if you were selected unfairly for redundancy, or there was another job you could have taken which wasn’t offered to you
Dismissals are classed as ‘automatically unfair’ under certain circumstances:
- if you are trying to exercise a right you have under law (e.g. maternity/paternity leave, minimum wage, annual leave, working time regulations)
- if you are dismissed because you are pregnant
- for taking action over a health & safety issue at work
- trade union membership and activity, acting as an employee representative
- whistle blowing (i.e. drawing attention to a matter of public concern at work)
If you are not sure if you have been unfairly dismissed, contact us and we can give advice on your individual circumstances.
What do I do if I don’t know why my employer has dismissed me?
If you’re an employee and have worked for your employer for 2 years, you have the right to ask for a written statement from your employer giving the reasons why you’ve been dismissed. This must be supplied by your employer within 14 days of you asking for it.
If you are dismissed while you are on Statutory Maternity Leave, your employer must give you a written statement whether or not you have asked for one, and regardless of how long you’ve worked for your employer.
Have I worked long enough to make an unfair dismissal claim?
You are usually only eligible to make a claim for unfair dismissal if you have worked for your employer for two years. However, if your dismissal is classed as “automatically unfair” (see above) it does not matter how long you have worked for the employer.
What is constructive dismissal?
A constructive dismissal is when you are forced to leave work due to the behaviour of your employer – for example, if they suddenly demote you or don’t pay you, force you to accept unreasonable changes to your working arrangements, or let other employees harass or bully you. If you are unhappy at work, it is important to try and talk to your employer to resolve the issue in the first instance.
Does my employer have to give me notice if I’m being dismissed?
Unless you are being dismissed for gross misconduct (including theft, fraud, and violent behaviour) in most cases your employer must give you a period of notice. The minimum period of notice will depend on how long you’ve worked for your employer. Find more information about notice of dismissal on the Citizens Advice website here.
Is there a time limit to make my claim?
You must make an application to an employment tribunal three months less one day from the date of your dismissal. Early conciliation can extend the time limit, but it is very important that the time limit is not missed. If you are not sure of the date of your dismissal, contact us straight away so we can make sure you do not miss the deadline.
What does the employment tribunal do?
An employment tribunal will consider your claim and determine whether the decision to dismiss you was fair and reasonable. There are two remedies available for unfair dismissal: re-instatement or re-engagement; and/or compensation. An employment tribunal could decide you should get your job back, but it is rare.
What compensation can I claim?
If you win your claim for unfair dismissal, compensation is usually made up of a basic award and a compensatory award. The basic award is based on your pay and how long you have worked, while the compensatory award is to compensate for loss of earnings (including loss of benefits, overtime, bonuses and pension rights). Awards for unfair dismissal are not generally large though, and so it is better to sort out problems early.
Will making a claim for unfair dismissal cost me anything?
In most cases, we can offer a type of ‘no win no fee’ agreement called a ‘contingency fee agreement’. This means that you only pay our fees if you receive compensation, and our fees will be limited to a percentage of your compensation.
How long will it take?
Most unfair dismissal cases are resolved between 3 to 6 months. If your employer is unwilling to settle with you and we need to take your case to an employment tribunal, it may take longer.
More questions?
If you are not sure if you have been unfairly dismissed, or have more questions about the issues raised here, please do contact us. Gordon Dean, Head of our Employment Law Department, has years of experience in employment law and unfair dismissal cases. Each situation is different, and Gordon will guide you through the process whilst seeking the best outcome for you.