Unfair Dismissal
An unfair dismissal happens when you are dismissed from your job and your employer doesn't have a valid reason for dismissing you and/or has acted unreasonably.What is dismissal?
Dismissal is when your employer, with or without notice, ends your employment. It can also happen when a fixed-term contract isn't renewed or when an employer forces someone to retire. Dismissal can be done verbally or in writing.
Constructive dismissal is where your employer's actions (eg extreme bullying) force you to resign.
What is an unfair dismissal claim?
If you are an employee and feel your employer has dismissed you unfairly, you might make an unfair dismissal claim to an Employment Tribunal.
In most cases you will need to have a year's service to make a claim for unfair dismissal. If your dismissal was before 1 October 2006, you will also normally need to have been under your normal retirement age (or 65 if you don't have a normal retirement age).
How a claim works
It will be up to you to show that you have been dismissed. This will usually be clear but may be more difficult if you are claiming that you have been constructively dismissed.
Your employer must show they have:
- a valid reason for dismissing you
- acted reasonably in the circumstances
Your employer must be able to show that they've been consistent and have not sacked you for doing something that they normally let other employees do.
You may be able to claim unfair dismissal if you can show that you weren't told about a relevant company rule or policy by your employer.
In the case of retirement, the need to act reasonably and follow the statutory minimum dismissal procedure will not apply. In that case the fairness of the dismissal will depend on whether your employer complied with the duty to consider working beyond retirement.
Wrongful dismissal
Wrongful dismissal is different from unfair dismissal. It's where your employer breaches your contract in dismissing you, normally by dismissing you without notice or without following a procedure required by your contract. A dismissal can be both wrongful and unfair.
Reasons for dismissal
Automatically unfair reasons
Some reasons for dismissal are automatically unfair, including:
- because you've used, or attempted to use, a statutory employment right (for example, taking parental leave)
- because you've become pregnant
- because of your membership/non-membership of a trade union
Potentially fair reasons
A dismissal is 'potentially fair' if it's because of:
- your conduct
- your ability to do your job
- redundancy
- retirement (from 1 October 2006)
- a legal reason that prevents you from doing your job (for example, losing your driving licence if you're a delivery driver)
- another substantial reason
If you've been employed for a year (or you're pregnant or on maternity or adoption leave), you have the right to a written statement of reasons for your dismissal if you ask.
The article on reasons for dismissal can tell you the sort of steps your employer should follow to be able to show that they have acted reasonably.
How much notice must your employer give you?
Your employer must normally give you at least the notice stated in your contract or guaranteed by law.
Dismissal without notice is only allowed for 'gross misconduct', which means a situation serious enough to dismiss you without first giving a warning (such as theft, fraud or violence). An employer should always investigate the circumstance before dismissing - even in possible gross misconduct cases.
What to do if you're unfairly dismissed
First try appealing under your employer's dismissal or disciplinary procedures, or, in the case of discrimination or potential constructive dismissal, making a complaint under their grievance procedure.
You and your employer could try conciliation through Acas, where a specialist helps you sort out the problem.
Another option is individual arbitration, where an independent arbitrator hears the case and makes a legally binding decision.
Things to remember
Keep copies of any letters you send, and written notes of meetings and telephone conversations.
While you are looking for a new job you may be able to claim Jobseeker's Allowance, Housing Benefit, or Council Tax Benefit.
Employment Tribunals
If you haven't been able to sort things out directly with your employer, you may need to go to an Employment Tribunal. Before doing so, you should have appealed under your company's dismissal or grievance procedure. You must make the claim within three months of being dismissed unless these procedures aren't finished.
If Acas wasn't asked to conciliate before you made your complaint to a tribunal they will offer to conciliate once your complaint has gone in.
If you are successful
If a tribunal finds in your favour, you could get your job back or compensation. You needn't take your job back, but your compensation may be lower if you don't.
Compensation is intended to put you where you would have been financially if you hadn't been sacked - there's no compensation for hurt feelings. You'll be expected to minimise any financial loss by signing on, or looking for new work.
A tribunal may reduce your compensation if it decides that your conduct played a part in your dismissal, or if you haven't complied with the statutory minimum disciplinary procedures.
What to do if you can't claim for unfair dismissal
You may be able to claim payment for notice, holiday pay or any outstanding final pay. If you think your dismissal was unlawful discrimination, you may be able to claim for that.
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