Being dismissed is a stressful experience. It’s common to feel upset and angry at losing your job. You’ll need to understand the different ways staff can be dismissed, and when being sacked might be unfair dismissal.
This guide offers an easy to understand overview of what happens when you are dismissed, and your legal rights during disciplinary procedures. We’ll also explore wrongful and constructive dismissal, and what you should do if you think you’ve been unfairly dismissed.
Dismissal, often referred to as being ‘sacked,’ is when the employment contract between an employer and an employee is terminated. This generally happens when there’s a solid, legal, and justifiable reason.
However, it’s not as simple as just letting someone go. Employers must adhere to specific procedures to ensure the dismissal process is conducted fairly and legally. In the following section, we will explore what happens when these procedures aren’t properly followed, leading to what is known as ‘unfair dismissal’
What is Unfair Dismissal?
Unfair dismissal happens when an employer terminates an employee’s contract without a valid reason or without following a fair and just process.
A dismissal can be deemed unfair when the process of dismissal contravenes an employee’s rights under employment law, such as when an employer does not provide sufficient notice or doesn’t have a fair reason for the dismissal.
An employee who feels they have been unfairly dismissed can challenge the decision in an employment tribunal, and seek compensation.
Unfair Dismissal Under 2 Years
The rules for claiming unfair dismissal are slightly different for employees who have been with their employer for less than 2 years.
Employees who have less than 2 years service, do not have full protection under UK employment laws. This means they can be dismissed without the requirement to show a proper disciplinary process was followed if the employer gives a fair reason for the dismissal.
However, there are still some situations where employees with under 2 years service can claim unfair dismissal.
Automatically Unfair Dismissal
There are circumstances where dismissal may be considered automatically unfair. Protections against being dismissed for discriminatory reasons are extended to all employees from day one of employment.
An automatically unfair dismissal can be claimed when someone is fired because of:-
- Trade union membership or activities.
- Pregnancy, maternity or paternity leave.
- Requesting flexible working arrangements.
- Enforcing statutory rights, such as the right to the full national minimum wage rate or protections offered by the Working Time Regulations.
- Whistleblowing, or exposing wrongdoing within the workplace.
- Participating in jury service.
- Taking or intending to take action over a health and safety issue.
- Being forced to retire, which can be referred to as compulsory retirement.
See Also: Unfair dismissal during probation.
It’s important to distinguish between ‘unfair dismissal’ and ‘wrongful dismissal’, as they represent different legal concepts. While ‘unfair dismissal’ refers to a breach of statutory rights, ‘wrongful dismissal’ centres around a breach of employment contract.
Typical examples of wrongful dismissal can occur when an employer terminates an employee without giving the notice period stipulated in the contract. You don’t need two years of continuous employment with the same employer to claim wrongful dismissal. This right to fair treatment starts from the very first day of your job.
Fair Reasons for Dismissal
Dismissal is considered fair and lawful if it meets one of the five fair reasons for dismissal outlined in the Employment Rights Act of 1996. Employers must adhere strictly to these guidelines when dismissing an employee.
The following are the specified reasons for fair dismissal:
- Conduct, including misconduct and gross misconduct. This means the employee has done something not acceptable in the workplace. This could be stealing, bullying or sexual harassment.
- Capability. Sometimes an employee may be physically unable to do their job safely. It might be due to an ongoing illness or disability. Employers must proceed with caution when dismissing on capability grounds.
- Redundancy. It might be that the company is experiencing some financial problems and laying off staff will ease these. Or it might be that the job role the employee had is no longer viable or needed.
- A valid legal reason. An employer can dismiss a staff member who can no longer perform the job legally. For example, a delivery driver might be sacked by the delivery company if their driving licence has been revoked.
- Some other substantial reason. Dismissal can be fairly applied where there is another substantial reason. This might include repeated warnings for a certain behaviour or the completion of a fixed term contract.
Constructive dismissal is an often complex situation where an employee resigns because their employer has significantly breached their employment contract terms.
In these situations, the employee often feels forced to leave their job due to actions or negligence from the employer’s side, thereby constructing the circumstances for their own dismissal.
Several circumstances can lead to constructive dismissal claims being made, and they may include:
- When an employer is late paying wages on a persistent basis.
- Having unlawful salary deductions made.
- Being faced with discriminatory behaviour.
- Bullying at work.
- A grievance not being properly investigated, if at all.
- Making changes to the work contract without prior agreement, leaving employees working in protest.
- Demotion of staff without explanation or a good reason.
- Failing to give staff their basic working rights such as rest breaks or a safe working environment.
Making an Unfair Dismissal Claim
Making an unfair dismissal claim against your employer can seem daunting. However, the steps below give a basic overview of the process you’d follow when submitting a claim.
Know Your Legal Rights
Before proceeding with an unfair dismissal claim, you need to be fully aware of your legal rights. This includes knowing what constitutes unfair dismissal.
An important first step is checking that you meet the criteria to make a claim after losing your job. If you aren’t sure, make sure you get legal advice from a trusted source as quickly as possible.
Seek Legal Advice
It is important to arm yourself with as much legal information as you can at this point. Your local citizen’s advice bureau will be able to help you with this, free of charge.
You can opt for some specialist advice if you have the means to do so, and many employment lawyers offer a free intial consult.
Compiling proper evidence is paramount to your unfair dismissal case. You need to put together any information that proves your claim.
This might be wage slips, emails, any statements from witnesses and any other relevant information. Evidence will strengthen your case and help prove unfair dismissal.
Before launching a tribunal case, you should first enter early conciliation. In most cases, you cannot start the tribunal process until you have tried this first.
This involves contacting ACAS who will attempt to resolve the issue without the need for a tribunal hearing. This isn’t always successful but in some cases, employers will make an offer to settle the dispute.
You must stick to the time frames for making claims for unfair dismissal. You need to start the process within 3 months (less one day) from the day you were dismissed.
You can fill in a form, known as the ET1 Form, from the government website. This is the case if early conciliation is unsuccessful or not an option. This form allows you to detail the reasons for the claim, why you feel it is unfair dismissal and other relevant information.
This will then be submitted to the employment tribunal for them to determine the next steps.
The employment tribunal will then be in touch with the employer to get a response from them. This is usually given a time limit of 28 days but employers can request an extension.
They are given a copy of the employee’s ET1 form so they can defend it if they wish to.
If the matter has not been resolved then it will proceed to an official tribunal hearing. Both the employee and employer will have their chance to talk and evidence the matter from their perspective.
The tribunal will then consider the evidence presented, plus the facts and make their decision.
Before or even during the hearing, the employer and employee may come to a settlement arrangement. This involves a formal agreement in writing, which all parties must agree to.
It will be legally binding to all those concerned.
If you disagree with the decision of the tribunal, you have the right to appeal. This involves taking the case to the High Court on the point of law.
This usually must be done within 21 days of the tribunal decision. However, the tribunal might have its own stipulations and offer another time frame.
Unfair Dismissal Compensation
Once an employment tribunal rules they consider a dismissal to be unfair, they will calculate how much compensation to award.
The amount will then be communicated to the former employer who must honour this payment. One of the main reasons for an unfair dismissal case results from employers failing to follow the ACAS code of practice.
As of April 2022, the maximum award for basic compensation is £17,130. The overall amount awarded, however, may rise beyond this as it doesn’t include things such as loss of earnings.
The amount offered is solely for compensation for the unfair dismissal which means employers may have to pay out over and above this amount. There are two determining factors when calculating the compensation – length of service and the age of the employee.
There is a cap of 20 years as the service time and the age is used to calculate a fair rate of compensation. All of these factors help to arrive at a fair and reasonable formula by which to award compensation.
A compensatory award takes into consideration the actual financial losses during the unfair dismissal. This covers loss of earnings and any future loss of earnings too.
There might be grounds for pursuing compensation for future losses if this dismissal has adversely affected future employment.
The compensatory award will also consider bonus schemes you have missed out on or any pension entitlements. However, the employee needs to be able to evidence any attempts at gaining future employment. Failing to do this may result in a reduced amount of compensation.
In some, but not all, unfair dismissal cases, there might be an argument for additional awards to be granted. This will depend on each case, based on its circumstances. The tribunal may decide that interest will be charged on top of the compensation.
Another example of an additional award is a protective award. This is usually awarded when correct redundancy procedures were not followed, resulting in unfair dismissal.
There can also be grounds for an award for aggravated damages. This is fairly rare though and only awarded if the employer’s behaviour is deemed cruel.