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Unfair dismissal is where an employee’s contract of employment is terminated, and it can be shown to be unfair. Generally speaking, employers can terminate employment in the following circumstances:
- Employee misconduct;
- Employee capability or qualification issues;
- A genuine redundancy situation;
- A statutory requirement; or
- Some other substantial reason.
Employees can make a claim for unfair dismissal if they are an employee (including part-time and fixed-term employees) and have worked for their employer for 2 years or more (subject to automatic unfair dismissal claims where there is no length of service requirement).
Employment Tribunals will also look at whether the employer followed a fair and full procedure. During the coronavirus pandemic, employees have the same rights, as usual, to not be unfairly dismissed.
What are the different types of unfair dismissal?
The usual type of unfair dismissal claim is where an employee is dismissed (including redundancies), has worked for the employer for over two years and can show that the dismissal was unfair.
Employees can also make a claim for ‘automatic unfair dismissal’ and this can be made by an employee regardless of their length of service. Some examples of automatic unfair dismissals can include:
- Asserting a statutory right
- Maternity/paternity leave
- Parental/adoption leave
- Asking to be paid the minimum wage
- Trade union activities
- Making a protected disclosure (i.e. whistleblowing)”
Employees can also make claims for unfair dismissal where the reason for dismissal was valid, but the employer failed to follow a full and fair procedure.
How can an employee make a claim?
To make a claim for unfair dismissal:
- Employees should note that the time to make a claim for unfair dismissal is 3 months (less than one day) from the date that the dismissal took place;
- The first step is to contact ACAS who will offer the employee the option of ‘early conciliation’ which is a free service whereby ACAS offers both parties the opportunity to come to an agreement before going to the Tribunal.
- If early conciliation is unsuccessful, the employee should make a claim to the Employment Tribunal within the relevant time frame.
Unfair dismissal compensation – how much could an employee get?
Employees may be entitled to:
- Basic award – a fixed sum which is calculated to a statutory formula based on the employee's age, length of service and weekly pay (subject to a statutory limit); and
- Compensatory award – an award made to compensate the employee for the loss they have suffered as a result of losing their job. The idea of this award is to “compensate, and compensate fully, but not to award a bonus" (Norton Tool v Tewson 1972).
How to prevent an unfair dismissal claim
As an employer, you need to pay particular attention to the rules surrounding dismissals. Make sure that when dismissing employees or making redundancies, you are following the correct procedures to avoid any claims being made against you! If you are unsure at any point throughout the process, contact a solicitor or ACAS representative for guidance.