Employment

Dismissal is the termination of employment with or without notice. Constructive dismissal is where the employee has resigned because the employer is either in breach of the employment contract or shows an intention that they will not be binding with the contract, or the expiration of a short-term contract without its renewal.

Dismissal is fair if the employer can show that the employee was dismissed for one of the following reasons: the employee’s qualification or capability for the job; the employee’s conduct; the retirement of the employee; redundancy (i.e. the need for the work to be done has been diminished) ;a statutory restriction which prevents the employment being continued; any other substantial reason which could justify dismissal.

The Employment Tribunal will decide if a dismissal was fair or not by taking into account whether the employer followed appropriate disciplinary procedures, and where the statutory procedures apply and have not been complied with, a dismissal will be deemed unfair.

Employers should always follow the correct procedure when dismissing an employee; an instant dismissal without adherence to the correct procedure will usually lead to an unfair dismissal claim. For example, if the employee is accused of misconduct, a disciplinary hearing should be called and the employee given a chance to be heard before being dismissed. If an employer wishes to defend an unfair dismissal claim, he/she will need to show that the employee was dismissed for a fair reason. A fair reason would include the employee’s conduct or capability; for redundancy reasons; or for any other substantial reason (the employer must show they acted reasonably in coming to their decision). In cases of dismissal because of retirement, the fairness of the dismissal will depend on whether the employer complied with the duty to consider working beyond retirement. In a redundancy situation, the employer will also be expected to consult with the employees affected and carry out a fair selection process. It should be noted an individual will usually need to be continuously employed for two years before they can make an unfair dismissal claim.

Time Limits in Employment Tribunal Cases

An application to the Employment Tribunal should be received within three months from the employee’s effective date of termination. You are advised, therefore, to get in touch with our solicitors as soon as you have been dismissed. Late applications will be considered if the tribunal are satisfied that it was impractical for the employee to have made the complaint within the three-month period, and that the employee applied within a reasonable time given the circumstances.

If you are looking to initiate or defend an unfair dismissal case, get in touch with our specialist employment lawyers. Our team of employment solicitors have a wealth of expertise and experience in the field of employment and a proven track record and can see you smoothly and swiftly through the entire process.

How Much Compensation Will I Get in an Unfair Dismissal Claim?

The remedies for unfair dismissal are either the basic award, a compensatory award, reinstatement or re-engagement.

Basic award

The basic award is calculated as:

1.5 weeks’ pay for each whole year of service after the age of 41
one week’s pay for each whole year of service between the ages of 22 and 40 inclusive; and
0.5 week’s pay for each whole year of service under the age of 22.
(These figures are subject to a maximum of twenty years’ service.)

The calculations are worked backwards from the dismissal which means if the employee has been employed for more than 20 years, he can get the benefit of the later years which will usually attract a higher sum of money.

Compensatory award

The compensatory award compensates the employee for any loss of earnings as well as other direct losses as a result of the unfair dismissal. This amount will be decided by the tribunal, and can include compensation for reasonable expense incurred by the employee and will also include compensation for loss of statutory rights.

Re-engagement/reinstatement

Reinstatement is where the employee goes back to his work on the same terms and conditions, with no loss of continuity of employment. Re-engagement is where the employee works for the employer on similar terms and conditions, but in a different job. Re-engagement or reinstatement make up around 1% of all successful unfair dismissal cases.