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Unfair dismissal 

One of the most common enquiries we receive is from employees who have had their employment brought to an end unfairly. 

What will you get if your claim for unfair dismissal is agreed? 

Working out what you will get if your claim for unfair dismissal is successful depends on a number of things and we advise you to speak to specialist employment solicitors like Spencer Shaw. We will explain the remedies available to you, by agreements negotiated directly with your ex-employer or through the ACAS and Employment Tribunal processes. We will also tell you what the risks are. 
 
It’s sensible to get advice early, especially as cases going to Employment Tribunal are limited to three months from the date of the dismissal. 
 
Call us or use the contact form on this website to discuss your case.  

You must be dismissed in order to make a claim of unfair dismissal 

 
“An employee has the right not to be unfairly dismissed by his employer.”  
Section 94(1) of the Employment Rights Act 1996 
 
There must be a dismissal; a termination of the employee’s contract of employment by the employer. Constructive Dismissal, which depends on action being taken by an employee in response to an employer’s conduct, is dealt with elsewhere. 

It’s the employee’s obligation to prove dismissal 

To make a claim for unfair dismissal, it’s for the employee to prove that she or he has been dismissed. In general, this is obvious. The employer will, in most cases, tell the employee clearly, often in writing, that their employment has been terminated. 
 
Confusing language or words spoken in the heat of the moment may or may not amount to a dismissal and it is important to take advice before starting a claim if the position isn’t clear-cut. 

The employer has to prove that the dismissal is for one of the reasons the law says is fair or may be fair 

It’s for the employer to prove that the reason for the dismissal was one of the potentially fair reasons that the law allows. The primary fair reasons are that the employee 
 
is guilty of misconduct; 
isn’t capable of doing the job they were employed to do; 
lacks a qualification necessary to do the job; 
is redundant; 
 
dismissal may also be fair if 
 
the employee’s continued employment in the job would break the law; 
there is some other substantial reason for ending employment which is of a kind justifying dismissal. 
 
If an employer can’t show that it had a fair reason for dismissal, then they will act unfairly and the dismissal will be unfair. The test isn’t unfairness in the common sense meaning of the phrase; it’s whether there was a legally fair reason to bring employment to an end. 
 
The issue of unfairness doesn’t end there. A dismissing employer must also act reasonably in treating the reason as a sufficient reason for dismissal. Let’s assume that an employer relies on one of the fair reasons for dismissal. The employer must still have reasonable grounds for believing that it was entitled to dismiss the employee for that reason in order for the dismissal to be fair.  
For example: 
 
An employee is dismissed for hitting a colleague: an obvious example of misconduct. But 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 dismissals generally fall into two categories: not capable by reason of ill-health and not capable because the employee doesn’t do their job to a reasonable standard. 
 
Ill-health in this context typically means an employee’s long-term absence for medical reasons which places the employer in economic difficulty. Performance-related capability dismissals often occur after a prolonged period of under-performance. 
 
Whether the employer is entitled to rely on capability as a fair reason for dismissal will depend on the circumstances of the case and each case tends to be fact-sensitive. 
 
Redundancy is a little different. Redundancies occur most commonly where an employer has a reduced need for employees to do the work they were employed to do at the place they were employed to do it. This may be because of a loss of business, the introduction of new production techniques, a reorganisation or because the business is moving to a new location. 
 
The decision to make redundancies is for the employer and the law won’t readily interfere in it. 
 
For the most part, unfair dismissal claims relating to redundancy are about whether the employee who is made redundant, should have been selected for redundancy, not about the circumstances that led to redundancy. 
 
It is frequently argued by employees that someone else should have been picked instead; or that the process followed by the employer to choose those made redundant was flawed; or that alternative work could have been made available to the employee, but wasn’t. 
 
Redundancy is also different from other legally fair reasons for dismissal because it triggers a right to statutory compensation for those qualified to receive it. More information about statutory redundancy payments can be found here
 
Some other substantial reason is a ‘catchall’ term and includes things like a clash of personalities or failure to adapt to new working processes. 

Limitation of time 

It’s very important to remember that even if you are an employee and the facts and circumstances of dismissal are such that you may have a claim for unfair dismissal, a claim must be made within three months of the date that your employment effectively terminates. That includes the date of termination. So, if the date of termination is, say, 26th April, the date by which proceedings must begin (by filing a claim with the Employment Tribunal) is 25th July. Any later and the claim will be out of time. The circumstances in which time may be extended are very limited. 
 
Early Conciliation, the mandatory procedure that must be followed before a claim can be started, will have the effect of extending time to a degree. You can find out more about Early Conciliation here
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