A dismissal occurs where the employer terminates the contract of employment of the employee. If that dismissal occurs in a way which is unlawful and without following a fair procedure, then this may give rise to a claim by the employee for unfair dismissal in an Employment Tribunal.
If an employee is dismissed without being given the necessary period of notice under their contract of employment, then this may lead to a claim of wrongful dismissal.
In the case of an unfair dismissal claim, the Law provides for five potentially fair reasons for an employer to dismiss an employee: –
- “Some other substantial reason” (SOSR)
A dismissal for any reason other than one of the above five would be treated as unfair by an Employment Tribunal.
Generally speaking, an employee must have two years complete service/employment with the employer before they are entitled to bring a claim for unfair dismissal. In certain cases, a dismissal is deemed automatically unfair and those cases include dismissals for reasons connected to pregnancy or childbirth or whistleblowing.
An employer must not only establish a potentially fair reason for dismissal, but the employer must also follow an appropriate fair procedure when terminating an employee’s contract of employment. This includes giving the employee sufficient information about the reasons for dismissal and giving the employee an opportunity to appeal against the decision to dismiss.
In a claim for unfair dismissal, an Employment Tribunal will scrutinise the procedure followed by the employer and will also assess the decision to dismiss the employee was “reasonable”. All of the circumstances, including the size and resources of the employer will be taken into account when assessing the reasonableness or otherwise of the dismissal.
A claim for unfair dismissal must be presented within three months starting with the effective date of termination. In other words, if an employee is dismissed on the 13th of April, the employee must lodge his or her claim with the Employment Tribunal by no later than midnight on the 12th July. In limited circumstances, that time limit can be extended.
Claims for unfair dismissal are also covered by the rules on ACAS Early Conciliation. As a consequence, any employee who wishes to bring a claim for unfair dismissal before an Employment Tribunal must first contact ACAS in order to commence Early Conciliation. Once Early Conciliation has been completed, then the employee shall be entitled to proceed with his or her Employment Tribunal claim.
In most cases, the remedy for unfair dismissal will involve the employer paying an award of compensation to the employee. There is a basic award which is calculated in a way which is similar to a Statutory Redundancy Payment (i.e. based on age, length of service and gross weekly pay). There is also a compensatory award which looks to compensate the employee for the financial loss caused by the unfair dismissal. This can include loss of earnings, loss of pension rights and other benefits.
Any employee who believes that they have been unfairly dismissed should contact me as soon as possible in order to take specialist advice about his or her Employment Law rights.
Article by: Martin Shipway – Solicitor and Director