Unfair Dismissal
In order to claim unfair dismissal, you must have been continuously employed for at least one year. However, you can bring a claim for unfair dismissal within your first year of employment if you are claiming on the basis of race, sex, trade union discrimination, dismissal related to pregnancy, national minimum wage, working time rights, health and safety activities, making a protected disclosure, making an application for flexible working or, where in good faith, you seek to exercise a statutory employment protection right.
You can claim at any stage up to the age of 65, unless there is a lower normal retirement age at your workplace. The Employment Appeal Tribunal has held that this rule is not indirectly discriminatory against men (it does not have a disparate effect on men and, in any event, would be justified). You may not be able to claim unfair dismissal if your contract, or part of your contract, is illegal and the tribunal decides that you knew about this, or co-operated with it.
If you bring a claim to an Employment Tribunal, your employer must show that the reason for your dismissal was a fair reasons.
Some reasons for dismissals are automatically unfair, for example, a dismissal for a pregnancy-related reason, or because the employee was an employee representative, or the reason for the dismissal was because the employee had made a complaint against the employer that his or her statutory rights had been infringed.
If the dismissal was not for one of the automatically unfair reasons, the employer must show that the dismissal was for one of six categories which the law recognises as being potentially fair. They reasons are:
· Conduct - the conduct of the employee, for instance where the employer considers the employee has been dishonest.
· Capacity – whether the employee is capable of doing the job properly,
· Redundancy,
· Retirement
· Legal restriction – for instance, the employee not having a right to work in this country.
· Some other substantial reason – there may be circumstances where the employer has a substantial reason for dismissing the employer which will be considered fair even where it does not fall within one of the five categories above.
If the employer can show that the dismissal was for a fair reason, then the question will be whether it was reasonable to dismiss the employee for that reason. There is no single test for reasonableness, but the court will normally consider whether the employer followed a fair procedure prior to the dismissal (such as carrying out a proper investigation where the dismissal is for misconduct, or having consultation with the employees where the dismissal is for redundancy); and then whether, in the circumstances the decision to dismiss was one which was open to a reasonable employer.
If your employer fails to show that the dismissal was for fair reason and that it was reasonable to dismiss in the circumnstances, you will be considered unfairly dismissed.
Remedies for Unfair Dismissal
If you win your case, the Employment Tribunal must first consider whether you wish to be reinstated and if so, must decide whether it is just and equitable to order that. In may cases the ET will be reluctant to order an employer to take back an employee, so in that case compensation should be awarded to take account of the losses you have suffered up to the date of the hearing and the amount of time you are likely to be unemployed, or if you have a job, to compensate you for any loss in pay in the new job.
If you have claimed unemployment benefit, the amount of benefit you have received is deducted from the award of compensation. In addition, you should also get a payment equivalent to a redundancy payment that is called a basic award. In some cases, you may be able to get compensation for distress, humiliation, damage to your reputation or to your family life or similar matters caused by your dismissal. Such compensation is unusual and is unlikely to be awarded unless your employer had behaved particularly badly in dismissing you, for example if your employer dismissed you on the basis of unfounded and very serious allegations which have severely damaged your reputation, or if the way you were dismissed was particularly humiliating, or if you were subjected to particularly abusive harassment by your employer which caused you to resign and claim constructive unfair dismissal. In principle, however, such losses are recoverable.
The amount an Employment Tribunal can award as compensation for unfair dismissal is capped at £60,600.00 (for dismissals that took place after February 2007). If you were employed at a rate of pay below the national minimum wage, you will be paid compensation at the appropriate minimum wage rate.
After dismissal, you must take steps to try and find alternative work and if you do not, your compensation may be reduced by a percentage. The Employment Tribunal may refuse to order reinstatement if you have contributed to your dismissal by your own actions.
You can claim at any stage up to the age of 65, unless there is a lower normal retirement age at your workplace. The Employment Appeal Tribunal has held that this rule is not indirectly discriminatory against men (it does not have a disparate effect on men and, in any event, would be justified). You may not be able to claim unfair dismissal if your contract, or part of your contract, is illegal and the tribunal decides that you knew about this, or co-operated with it.
If you bring a claim to an Employment Tribunal, your employer must show that the reason for your dismissal was a fair reasons.
Some reasons for dismissals are automatically unfair, for example, a dismissal for a pregnancy-related reason, or because the employee was an employee representative, or the reason for the dismissal was because the employee had made a complaint against the employer that his or her statutory rights had been infringed.
If the dismissal was not for one of the automatically unfair reasons, the employer must show that the dismissal was for one of six categories which the law recognises as being potentially fair. They reasons are:
· Conduct - the conduct of the employee, for instance where the employer considers the employee has been dishonest.
· Capacity – whether the employee is capable of doing the job properly,
· Redundancy,
· Retirement
· Legal restriction – for instance, the employee not having a right to work in this country.
· Some other substantial reason – there may be circumstances where the employer has a substantial reason for dismissing the employer which will be considered fair even where it does not fall within one of the five categories above.
If the employer can show that the dismissal was for a fair reason, then the question will be whether it was reasonable to dismiss the employee for that reason. There is no single test for reasonableness, but the court will normally consider whether the employer followed a fair procedure prior to the dismissal (such as carrying out a proper investigation where the dismissal is for misconduct, or having consultation with the employees where the dismissal is for redundancy); and then whether, in the circumstances the decision to dismiss was one which was open to a reasonable employer.
If your employer fails to show that the dismissal was for fair reason and that it was reasonable to dismiss in the circumnstances, you will be considered unfairly dismissed.
Remedies for Unfair Dismissal
If you win your case, the Employment Tribunal must first consider whether you wish to be reinstated and if so, must decide whether it is just and equitable to order that. In may cases the ET will be reluctant to order an employer to take back an employee, so in that case compensation should be awarded to take account of the losses you have suffered up to the date of the hearing and the amount of time you are likely to be unemployed, or if you have a job, to compensate you for any loss in pay in the new job.
If you have claimed unemployment benefit, the amount of benefit you have received is deducted from the award of compensation. In addition, you should also get a payment equivalent to a redundancy payment that is called a basic award. In some cases, you may be able to get compensation for distress, humiliation, damage to your reputation or to your family life or similar matters caused by your dismissal. Such compensation is unusual and is unlikely to be awarded unless your employer had behaved particularly badly in dismissing you, for example if your employer dismissed you on the basis of unfounded and very serious allegations which have severely damaged your reputation, or if the way you were dismissed was particularly humiliating, or if you were subjected to particularly abusive harassment by your employer which caused you to resign and claim constructive unfair dismissal. In principle, however, such losses are recoverable.
The amount an Employment Tribunal can award as compensation for unfair dismissal is capped at £60,600.00 (for dismissals that took place after February 2007). If you were employed at a rate of pay below the national minimum wage, you will be paid compensation at the appropriate minimum wage rate.
After dismissal, you must take steps to try and find alternative work and if you do not, your compensation may be reduced by a percentage. The Employment Tribunal may refuse to order reinstatement if you have contributed to your dismissal by your own actions.
