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7-06-2019

Partner and HR Guru (@HRGuru_MB) Sarah Rushton answers frequently asked questions around the process of unfair dismissal and bringing a claim to an employment tribunal.

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What is Unfair Dismissal?

It is only lawful for an employer to dismiss an employee

  • where a proper process has been followed and
  • there is a fair reason for dismissal. 

What process should be followed?

It depends on the circumstances.  If you are dismissed for misconduct then your employer should have carried out a fair investigation and disciplinary procedure before deciding to dismiss you.  The decision to dismiss also has to be reasonable in the circumstances.  For example it would not be reasonable to dismiss for the first instance of minor misconduct.

What is a Fair reason for dismissal?

There are 5 potentially fair reasons for dismissal: redundancy, capability, conduct, because a statutory reason makes the employment unlawful (e.g. the employee doesn’t have the right work permit) or “some other substantial reason”

What is constructive dismissal?

Constructive dismissal is where an employee resigns in response to something an employer has done and is entitled to treat themselves as if they have been dismissed. 

Can everyone bring a claim for unfair dismissal?

Only employees have unfair dismissal rights.  Generally speaking an employee must have been employed by the same employer for 2 years before the date of dismissal, before they can bring a claim. An employee who has 103 weeks' continuous service may - if they are dismissed - obtain the required 2 years' service (and therefore be able to make a claim of unfair dismissal in an employment tribunal). This is because they are entitled by law to receive at least one week's notice.

Certain dismissal are automatically unfair and can be brought regardless of how long you have worked for someone e.g. if you are sacked because you are pregnant.

Is there a time limit for bringing a claim?

Yes and time limits are very strict

Where do I bring a Claim?

A claim for unfair dismissal can only be brought in an employment tribunal, however before issuing a claim an employee must first contact ACAS under the early conciliation procedures.  If early conciliation takes place then it may affect the time limits referred to above.

What can I expect to get if I win?

In calculating an award for unfair dismissal an employment tribunal will make a basic award (calculated like a statutory redundancy payment) and a compensatory award.  A compensatory award is limited to the lesser of 1 years’ gross pay or £83,682.

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