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Unfair Dismissal

If you feel as though you have been treated unfairly in your dismissal, our expert employment lawyers are here to help with your unfair dismissal claim.

There are two primary considerations for a tribunal when looking at whether a dismissal was unfair:

  1. The reason for the dismissal; and
  2. Whether the employer acted reasonably in all the circumstances.

Fair reasons for dismissal

It is possible for an employer to dismiss fairly for five reasons:

  1. Conduct
  2. Capability
  3. Redundancy
  4. Breach of a statutory requirement
  5. "some other substantial reason"

The burden to show the reason for the dismissal is on the Employer. The burden in relation to procedural fairness in all the circumstances is neutral. When considering the actions of the employer the Tribunal will consider the size and nature of the employer.

Unfair dismissal

Since April 2012 an employee needs 2 years’ of continuing service to bring a claim for unfair dismissal. If an employee started before April 2012 they only require 1 year’s continuous service.

There are some circumstances in which a dismissal will be automatically unfair. For example, if a woman is dismissed because she is pregnant, if an employee is dismissed for trade union activities or because they have made a protected disclosure at work ("whistleblowing").

Unfair dismissal compensation

There are two elements to the compensation an employee will receive in a successful claim for unfair dismissal;

  1. A basic award calculated on the basis of age, salary and length of service.
  2. A compensatory award. Including loss of earnings, any benefits, including pension, and any expenses incurred in seeking new employment.

An employee is under a duty to mitigate their loss. It is important that they actively seek work and keep documentary evidence of their searches and applications.

When can unfair dismissal compensation be reduced

There are some circumstances in which the employment tribunal may reduce the amount of an employee's compensatory award:

  • "Polkey" reductions. Where had a fair procedure been followed the outcome would be the same;
  • Where an employee has contributed to their dismissal; and
  • An employment tribunal can either increase or decrease an award by up to 25% if it considers that either an employer or an employee has unreasonably failed to comply with the standards of good practice set out in the Acas Code of Practice on Disciplinary and Grievance Procedures.

There is a time limit of three months to bring a claim for unfair dismissal.

Instead of bringing a claim in the employment tribunal or court, you could also consider trying to negotiate a settlement agreement with your employer. Our unfair dismissal solicitors have a wealth of experience in successfully negotiating settlement agreements.

  • How much compensation can I get for unfair dismissal?

    The basic award is calculated in the same way as a statutory redundancy payment and takes into account your length of service (often subject to a legal cap of 20 years), gross weekly pay (often subject to a legal cap which is currently £484), and age (you get 0.5 week’s gross pay for each complete year employed under age of 22; one week’s pay for each year employed aged 22 to 40, and 1.5 week’s for each year employed aged 41 or over). The government online calculator is useful - https://www.gov.uk/calculate-your-redundancy-pay

    A tribunal will also consider awarding a compensatory award which will include the following:

    Loss of earnings;

    Loss of bonus/commission;

    Loss of other benefits;

    Expenses;

    Loss of protection as a result of unfair dismissal; and

    Loss of pension rights.

    There is a statutory cap (currently £80,541) unless you were dismissed because of whistle blowing or health and safety reasons in which case the award is unlimited.

  • How much notice do you have to give for redundancy?

    The law states that employees must give one week’s notice, and that employers must give employees the following minimum notice:

    Between one month and one year’s employment: one week;

    After one year: one week;

    After 2 years: 2 weeks and an additional week for each complete year of employment, up to 12 weeks notice.

  • What is the consultation period for redundancy?

    In a redundancy situation and before serving notice the employer must consult with the employees. If fewer than 20 redundancies are proposed there are no time limits in respect of the length of consultation.

    If 20 to 99 redundancies are proposed within 90 days, consultation must last for 30days; and

    If 100 or more redundancies proposed, consultation must last for 45 days.

 
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