Unfair Dismissal

All employers have the right to hire and fire a member of staff - within reason. However, if you feel you have got the sack unfairly, you may have a case for the Employment Tribunal.

Qualification for Unfair Dismissal

Whether or not you feel you have been unfairly dismissed from your employment, there are certain criteria you need to meet, before an employment tribunal could even begin to consider a case for unfair dismissal.

It's necessary to meet the following conditions to be considered as a case for unfair dismissal.

• You must have had at least one year's continuous employment with the employer, although there are exceptions to this such as maternity issues, dismissal as a result of trade union activity and others
• You must be below 65 or your normal retirement age for your job on the date of your dismissal, although there are exceptions to this if your dismissal was based on the grounds of discrimination
• Your job ended within the past 3 months. This is because an employee only has 3 months since they were dismissed in which to bring the claim

How a Claim for Unfair Dismissal Works

If your case for unfair dismissal is considered by an employment tribunal, your employer must show they have:

• A valid reason for dismissing you
• Acted reasonably in the circumstances

They need to have investigated the situation leading up to your dismissal thoroughly and followed at least the steps in the statutory minimum dismissal procedure. If they haven't taken these steps, then your dismissal is unfair.

If you employer has investigated fairly but have come to the wrong conclusion, if they have got their facts wrong, for example, this will not necessarily mean the dismissal is unfair. Your employer must be able to demonstrate that they have been consistent and have not sacked you for doing something they would let other employees ordinarily do.

You may be able to claim unfair dismissal if you are told that you weren't told about a relevant company rule or policy by your employer. However, ignorance would not be an excuse. For example, if you breached a company rule or policy because you didn't bother to read all 100 pages of their employment handbook, you can't use this as a mitigating factor in your defence - they did provide you with the information, after all.

Fair Versus Unfair

A dismissal is usually 'fair' if it's because of:

• Your conduct
• Your ability to do your job is not up to standard
• Redundancy
• A legal reason that now prevents you from doing your job (e.g. you've lost your driving license and you're employed as a delivery driver)

A dismissal is automatically unfair if it's because:

• You've used or attempted to use a statutory employment right (for example, taking parental leave).
• You've become pregnant
• You're a member or fail to become a member of a trade union

Does my Employer Have to Give me Notice?

Your employer must normally give you the same notice as set out in your terms of employment. However, you can be dismissed without notice if your employer deems you to be guilty of gross misconduct. For example, you can be fired 'on the spot' for things such as theft, fraud or violence. An employer should, however, always investigate the case fully before instigating dismissal, even in areas of gross misconduct.

What to do if You Think You Have Been Unfairly Dismissed

First, try appealing under your employer's dismissal or disciplinary procedures or you and your employer could try conciliation through ACAS, (Advisory, Conciliation and Arbitration Service) where a specialist may be able to help you sort out the problem.

And Failing That…..?

If you've failed to come to some sort of agreement with your employer, you may need to go to an Employment Tribunal. Before doing so, you should:

• Have firstly appealed under your company's dismissal and grievance procedure
• Have made the claim within 3 months of your dismissal unless internal procedures are still ongoing.

If a tribunal finds in your favour, you could get your job back or, alternatively, financial compensation. You do not have to return to your job but you may find that compensation is lower if you don't. The compensation is not for any hurt feelings or for you thinking you have been badly treated by your employer, it reflects the amount of money you have lost since you were dismissed from your job and is made to bring you back to the level of your financial status, had you not otherwise been dismissed unfairly. You will also have been expected to minimise any financial loss by signing on for income support or some other benefit or by looking for alternative employment.

A tribunal may also reduce your compensation if it deems that your own conduct played a part in your dismissal or if you haven't complied with the statutory minimum disciplinary procedures.

Further information about unfair dismissal claims and employment tribunals can be obtained from your local Citizen's Advice Bureau and ACAS.