What Constitutes an Unfair Dismissal Claim?

If you have recently been dismissed from your employment and feel as though the grounds for your dismissal were unfair, you may be wondering what your rights are moving forward in what is an undisputedly difficult period of your life.  

To help you through this, we have created the below blog to answer some of the most commonly asked questions surrounding dismissals and to provide professional guidance on what you can do if you wish to bring forward an unfair dismissal claim against your employer. 

What are unfair dismissals?

Unfair dismissals are when an employee has either had their employment terminated for an unfair reason, or where the employer has failed to follow a fair process.

There are only limited fair grounds to dismiss an employee, namely redundancy, conduct, capability, illegality and “some other substantial reason” (also known as “SOSR”).   

For example, if you have been fired without adequate investigations being undertaken, and the decision to dismiss was reached without the employer pursuing other options such as performance reviews, warnings, and demotions, this may be seen as unfair dismissal.

Each business should have its own capability and disciplinary processes, and the unfair elements could be when there have not been enough chances for the employee to improve – for example, if the dismissal was performance related, the employee should be given targets and a reasonable amount of time to reach these, before the employer can then consider dismissal.

There are also constructive unfair dismissals, whereby the employee felt they had no choice but to resign due to a material issue with their employer.

In some instances, unfair dismissals may be around long-term sickness and absence – this could also be regarded as disability discrimination, depending on the health condition in question. Employers need to consider reasonable adjustments, while still following fair processes, such as welfare meetings, before they can fairly dismiss someone for health reasons.

What is the difference between fair and unfair dismissals?

As mentioned above, an unfair dismissal is often in relation to the employer failing to follow the correct procedures, opting to dismiss the employee over alternative options, or dismissing for an unfair reason.

A fair dismissal, however, is based on one of the fair reasons listed below, and if these apply, and the employer follows a good process, your employer may be well within their rights to terminate the employment.

What are the five fair reasons for dismissal?

There are five core examples of fair dismissals:

  1. Conduct

Examples of misconduct should be clearly stated in any workplace policies, with examples including harassment, bullying, insubordination, poor attendance and/or unexplained absences. This also includes gross misconduct, such as theft, fraud, violence, and gross negligence.

  1. Capability and performance

There are instances where an employee can be dismissed due to their capability and performance, such as their skills, aptitude, health, and other mental and physical capabilities.

  1. Redundancy

If a business is forced to close, or there is a reduced need for the employee’s work, then an employer may fairly dismiss an employee on the grounds of redundancy. This must only follow clear consultation processes and consideration of alternatives before termination for redundancy.

  1. Statutory illegality or breach of a statutory restriction

If the employee has no right to work in the UK, then they can potentially be fairly dismissed on the grounds of illegality or a statutory restriction.

  1. Some other substantial reason

There are many other examples of fair dismissal, which are purely dependent on the context of the situation at hand, but can include the breakdown of trust or confidence between an employer and employee, or such things as personality clashes. In these cases, some other substantial reason (SOSR) may come into play, as a “catch all” reason for dismissal. However, the employment tribunals will need persuading that the reason in question required a dismissal.  

Who can start an unfair dismissal claim?

We have many clients approach us wondering if they can claim for unfair dismissal.

If an employee has not served two years with their employer, they cannot bring forward an ordinary unfair dismissal claim, unless the dismissal was due to certain prescribed reasons such as asserting health and safety rights, whistleblowing, or discrimination, when different rules apply.

If you have two or more years of service, then you have rights to bring forward an ordinary unfair dismissal claim against your employer.

How long after dismissal can someone claim for unfair dismissal?

The time that an employee has to bring a claim forward is limited, with a deadline of three months less one day from the date of the end of employment, which is referred to as the ‘limitation date’.

Before pursuing an unfair dismissal claim, the former employee must contact ACAS and start a process called Early Conciliation. This must be done before the limitation date above.

The rules for time-limits are then quite complex, but broadly, the time-limits are extended by the period of time the case is in Early Conciliation and in any event, the former employee will have at least one month from the date that Early Conciliation ends in order to bring a claim.      

It is important to submit claims in time, as the time-limits are strictly applied by the employment tribunals.

What are the average pay-outs for unfair dismissal claims?

The pay-out you could receive for your unfair dismissal claim is entirely dependent on your unique case and the circumstances surrounding your dismissal.

There are two components to unfair dismissal compensation - a ‘basic award’ and a ‘compensatory award’.

A basic award is worked out using your pay, length of service and age, using the same calculation as statutory redundancy pay.

A compensatory award is based on your actual loss suffered due to the unfair dismissal i.e. loss of earnings and benefits during a period of unemployment or reduced periods of income. There are maximum caps that apply to the compensatory award, which are the lower of 12 months’ gross salary or £93,878.  

In cases that involve discrimination, the payment may be larger than an ordinary unfair dismissal claim as there is no cap on compensation, and compensation often includes an injury to feelings award.

How long does an unfair dismissal claim take to complete?

There is currently a large backlog for employment tribunals as an ongoing impact caused by the pandemic, with some hearing dates set to take place in 2024.

Due to the long wait, it may be more beneficial to go down the route of a settlement agreement, whereby an employer and employee can come to a mutually beneficial agreement, with the dismissed employer agreeing to drop any claims for agreed payments. 

What is the process for starting an unfair dismissal claim and how can Smith Partnership help?

If you feel you have been unfairly dismissed by your employer, you must usually first go through the employer’s appeal process, which is an internal procedure.

While we may not typically get involved at this time, we can assist by helping to draft the appeal letter.

If your appeal is unsuccessful, then you may wish to issue an employment tribunal claim and we can represent you in these proceedings.

Additionally, you may wish to pursue a settlement agreement option with your employer. If so, we can write a letter to your employer on your behalf, instructing them that you feel you have been unfairly dismissed and have a claim against your employer, but that you would be willing to enter into a settlement agreement and drop the claim.

Contact our team of employment law solicitors today

If you are looking for additional support and guidance regarding your unfair dismissal claim, please feel free to get in touch with our employment law solicitors, who will be on hand to discuss your case and provide you with a plan of action.

You can call us on 0330 123 1229 or email us via info@smithpartnership.co.uk to discuss your enquiry.

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