Unfair Dismissals. Questions & Answers

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1 Unfair Dismissals Questions & Answers

2 What is unfair dismissal? Unfair dismissal is where an employee claims that his or her employer s decision to terminate their employment was unfair. Unfair reasons for dismissal could include; an unfair process being followed, no reasonable reason for dismissal or the reason for dismissing fell in to one of the categories which is known as automatically unfair.

3 What are fair grounds for dismissal? Legally there are six potentially fair reasons for dismissal; conduct, capability, redundancy, retirement, a legal bar which means employment cannot continue or a some other substantial reason to justify a dismissal. An employer is under an obligation to prove that the reason for making a dismissal was reasonable. What is procedural unfairness? Examples of procedural unfairness include unfair selection for redundancy and failure to adequately investigate an incident prior to dismissing an employee for gross misconduct.

4 What is automatic unfair dismissal? Automatically unfair reasons for dismissal include a failure to provide an employee with; a written statement of employment particulars, an itemised pay statement, a minimum notice period, maternity, paternity or adoption leave. Time off for antenatal care, parental leave, time off for dependants, the right to request flexible working arrangements, the right not to be discriminated against because of gender, race, disability, religion or belief, sexual orientation or age. Time off for public duties, protection against unlawful deductions from wages or making a public interest disclosure or whistle blowing. Is my employer obliged to disclose the reason for dismissal? Who can claim unfair dismissal? As of April 2012 only employees who have two year s continuity of service at the date of dismissal, or those who have been dismissed without notice and are within a week of gaining two year s continuity of service are eligible to claim unfair dismissal. If an employee commenced employment prior to April 2012 and has one year s continuity of service at the date of dismissal they are then eligible to claim unfair dismissal. This does not apply if an employee is claiming automatic unfair dismissal. Additionally an individual claiming unfair dismissal must be an employee as opposed to being self employed or an agency worker. The employee must be in employment in Great Britain and they must be within the 3 month time limit for bringing a claim to the Employment Tribunal. Yes. An employee with one year or mores continuous service with an employer can make a request for a written statement confirming the reason for their dismissal if they are otherwise unaware of the reasons.

5 How do you claim unfair dismissal? To present a claim at an Employment Tribunal an ET1 claim form must be completed by the employee and sent to the relevant Employment Tribunal within the necessary time limit. What does the employment tribunal do? The Employment Tribunal will assess the facts and evidence before it in relation to an employee s claim to establish whether the decision to dismiss the employee was fair and reasonable.

6 Are there any time limits? Yes, the Employment Tribunal has strict time limits which allow an individual to present a claim at an Employment Tribunal. For a claim of Unfair Dismissal, an employee has 3 months less 1 day from the date of his or her dismissal to present a claim at an Employment Tribunal. Other time limits include: Unlawful Deductions from wages an employee has 3 months less 1 day from the date of the last deduction to present a claim at an Employment Tribunal. Holiday Pay claims an employee has 3 months less 1 day from when the payment was due to present a claim at an Employment Tribunal. If the tribunal rules in my favour, can I get my old job back? Yes, potentially an Employment Tribunal can order re-instatement, re-engagement or compensation to an employee. If an employee requests that they be re-instated in to their old job it is at the discretion of an Employment Tribunal as to whether they will get their old job back. The circumstances which have led to the dismissal must be considered in terms of the realistic prospects of re-instatement, in certain circumstances an employee returning to a previous workplace may not be a realistic or viable option. Redundancy Payment claims an employee has 6 months from the date of their dismissal to present a claim at an Employment Tribunal. Equal Pay claims an employee has 6 months from the date they leave employment (including but not limited to TUPE transfers, changes to Terms and Conditions) to present a claim at an Employment Tribunal.

7 What about compensation for unfair dismissal? If an Unfair Dismissal claim is successfully pursued at the Employment Tribunal the maximum award which can be made is 72,300. The sum is reached by calculating a Basic Award and a Compensatory Award. The Basic Award is calculated in the same manner as a statutory redundancy payment. There are two main elements in the calculation of the basic unfair dismissal award. These are the employee s length of service at the date of termination and the employee s age at the time of dismissal. For the purposes of calculation a maximum of 430 per week gross is allowed, and up to a maximum of 20 years service (maximum of 12,900). Half a week s pay for each year of employment in which the employee is under the age of 22 One week s pay for each year of employment in which the employee is below the age of 41 but not below the age of 22 A Basic Award can be reduced by an Employment Tribunal if an employee refuses an offer of reinstatement unreasonably, if an employee has contributed in some way to their dismissal or if any payments have already been made, i.e. payment in lieu of notice or redundancy payments. A Compensatory award is for loss of earnings which have occurred as a result of the dismissal. The Tribunal can award compensation here for as short, or as long, a period as they consider just and fair. There is absolutely no guarantee that a Tribunal would award you loss of earnings even if an individual were to be successful in their claim. In making a decision the Tribunal will use their experience to decide how long they think it should take/should have taken an individual to find a similar job on a similar rate of pay as the job with their former employer. In an assessment of the individuals losses much will also rest on how far the Tribunal is satisfied that they have made a reasonable search for alternative employment. One and a half week s pay for each year of employment in which the employee was not below the age of 41

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9 Useful Contact Information For any questions please contact Stephen Pinder in our employment department using the following;

10 If you have any questions about anything in this leaflet please call us on Alternatively please EAD Solicitors LLP is a Limited Liability Partnership registered in England (registered number OC334289) and is authorised and regulated by the Solicitors Regulation Authority (487037). A list of members of the LLP is available for inspection at our registered office Prospect House, Columbus Quay, Liverpool, L3 4DB, together with a list of those non-members who are designated as partners. Any reference to a partner in relation to the LLP means a member or employee of, or consultant to, the LLP.

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