Unfair dismissal

Every employee with at least 2 years’ service has a right to not be unfairly dismissed. In some circumstances, you have the protection from day one.

Was my dismissal fair?

It is up to your employer to prove that the reason for your dismissal comes under one of the categories set out in the Employment Rights Act 1996. These categories are:

• You weren’t qualified to carry out the role
• Your health meant it was impossible to carry on working
• You were dismissed because of your conduct – such as dishonesty, poor attendance, or failure to follow instructions
• There was a genuine redundancy
• Continuing your employment would contravene a law, for example, if you are required to drive as part of your job but you have been banned from driving
• Some other substantial reason such as:
  • A personality clash between you and your employer
  • A client asks you not to manage their account
  • You unreasonably refuse to accept changes to your terms and conditions

If your employer is unable to prove one or more of the above reasons for ending your employment, then your dismissal will be unfair.

If you think you have been unfairly dismissed, you must act quickly. You have a very limited amount of time to appeal, negotiate a settlement or start the Acas Early Conciliation scheme – just three months (less one day) from the date your employment ended.  As specialist employment lawyers we can ensure that this is done properly to give your claim the best chance of succeeding and all for a guaranteed fixed amount.

My employer didn’t follow the correct process.

Even if there is a justified reason to dismiss you, it will still be unfair if your employer has not followed the correct process. This could be, for instance, where your employer has not followed the proper consultation or selection process in a redundancy situation. For dismissals based on misconduct, or performance, the process that your employer should follow is largely governed by the Acas Code of Practice, which provides that there should be sufficient investigations, evidence, warnings (in most cases) and the right to be accompanied at meetings.

Can my employer use new information after I have been dismissed?

No. The test is whether your dismissal was fair based on what your employer knew at the time you were dismissed.

What if I haven’t been here for 2 years?

Your dismissal will be ‘automatically unfair’ with no qualifying period of service necessary in exceptional circumstances, which include:

• If your dismissal was connected with a health and safety reason that you became aware of
• Where you have asserted a statutory employment right (such as maternity or paternity leave)
• If you were dismissed because you blew the whistle on your employer
• Paricipation in trade union activities

How much will I receive when I win my case?

If you are successful in a claim for unfair dismissal, the Tribunal can award damages made up of a Basic Award and Compensatory Award. From April 2023, the maximum amount that you can be awarded to compensate you for being unfairly dismissed  is £105,707, or 52 weeks gross salary – whichever is the lower. This is in addition to the maximum basic award.

Basic Award

The Tribunal uses your age at the date you were dismissed and your length of service to make the calculation:

• Half a week’s pay for each year of employment in which you were under the age of 22
• One week’s pay for each year of employment in which you were between 22 and 40
• One and a half week’s pay for each year of employment in which you were 41 or over

A week’s pay is capped at £643 from April 2023 before tax and for a maximum of 20 years’ service, so the maximum Basic Award is £12,860.

Compensatory Award

Tribunals have the discretion to award damages to reflect the losses you have suffered because of your dismissal. These are usually:

• Loss of wages up to the date of the Tribunal hearing

This covers the period from the end of the notice period (or dismissal) to the date of the Tribunal hearing, less any earnings from new employment, or to the start date of a new job if higher paid.

• Future Loss of Wages

This can include the difference in the pay you receive between your new and old job if you are now being paid less. If you haven’t found a new job yet then you can receive your net pay from the position you were dismissed from.

Most Tribunals will award between 6 and 12 months’ future loss of earnings, although in some cases Tribunals can award significantly more.

• Loss of benefits

This can include your bonus, share options, car allowance, health benefits and pension.

• Loss of statutory rights

This is usually anything between £250 and £750

The maximum Compensatory Award  is £83,682, or 52 weeks gross pay – whichever is the lower. In some cases, there is no cap on the compensation that can be awarded. These include cases where as well as unfair dismissal, there is a claim for discrimination, whistleblowing, a breach of a health and safety issue or where you are dismissed after trying to assert a statutory right.

Increasing or reducing your compensation

There are some circumstances where the Tribunal can increase or reduce your  Basic and Compensatory Awards:

• You are under a duty to take reasonable steps to find alternative employment as soon as possible. This is called ‘mitigation’. A failure to mitigate your loss will reduce the damages awarded.
• The Tribunal can also reduce your award if you unreasonably refused reinstatement or if you contributed to your own dismissal by your conduct.
• If your dismissal is held to be procedurally unfair, the Tribunal will ask itself whether this failure would ultimately have made any difference to the outcome. If not, then compensation will be limited to the period it would have taken for a proper procedure to take place before a fair dismissal could have been made. This is commonly known as a ‘Polkey’ reduction.
• Tribunals can also increase awards by up to 25% to reflect your employer’s failure to follow proper procedures. They can also reduce your award by up to 25% if you didn’t appeal your dismissal when it was reasonable to do so, or if you failed to lodge a grievance.

If you are faced with a disciplinary, we can help  you put the best case forward, or to help negotiate an exit. If you have already been disciplined, you will want someone who is an expert in employment law to negotiate you a great settlement.

If you feel you have been unfairly dismissed, you must act quickly. You have a very limited amount of time to appeal, negotiate a settlement or start the Tribunal process.

What do I do now?

This is where we come in. Employment law is all we do.

It can often feel like your employer holds all the power.  They will likely have experienced HR professionals or a solicitor working in the background.  That’s why you need the best support and advice available.  You need a specialist employment lawyer – one who will push for the best outcome for you.

We understand how it feels. We have helped hundreds of employees and because we act for businesses too, we know the tactics you’re likely to face from your employer.  We know every trick in the book.

We will advise you of your options and how best to proceed – whether you want to try to conciliate, reach a settlement or issue a claim in a Tribunal.

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