When making an unfair dismissal claim, you need to know how to handle unfair dismissal cases in the UK. To win a claim for unfair dismissal, you need to show that your employer didn’t follow a fair procedure or that the dismissal was for reasons classified as automatically unfair dismissal—such as health and safety issues. In automatic unfair dismissal cases, following a fair dismissal procedure may not be enough to justify the action. Every unfair dismissal case is unique, so you need to understand the legal grounds and the process.
This article will guide you through how to deal with unfair dismissal in the UK, covering the basics, the process, and the legal remedies. For expert guidance on employee dismissal, please visit Darwin Gray.
What is Unfair Dismissal?
Unfair dismissal is when an employee is dismissed from their job without a reason or without the employer following a fair process. The UK’s Employment Rights Act 1996 sets out the statutory rights of employees to protect against unfair or wrongful dismissal.
Legal Definition of Unfair Dismissal
To bring an unfair dismissal claim, an employee must usually have been employed for at least two years, although there are exceptions (such as dismissals related to health and safety, trade union membership, or whistleblowing, which are “automatically unfair”).
Main Reasons for Making an Unfair Dismissal Claim
The Employment Rights Act sets out five potentially fair reasons for dismissal. A dismissal will be unfair if it doesn’t fall into one of these five or if the process wasn’t fair.
Five Potentially Fair Reasons for Dismissal
- Capability or qualifications
- Conduct
- Redundancy
- Statutory restrictions
- Some other substantial reason
Automatically Unfair Dismissals
Some dismissals are “automatically unfair” under UK law. In these cases, employees can bring an unfair dismissal claim without the two-year employment requirement.
Bringing an Unfair Dismissal Claim
The first step is usually early conciliation, a process conducted through Acas (the Advisory, Conciliation and Arbitration Service) to resolve the dispute without the need for a tribunal.
- Submit an Acas Early Conciliation Form within the time limits (usually within three months of the dismissal date).
- Gather evidence to support the claim. This may include witness statements, employer actions, employment contracts, and any communication between the employer and employee.
- Consider legal representation to navigate the tribunal process. Legal expenses insurance may cover these costs.
Employment Tribunal
If conciliation doesn’t work, the case goes to an employment tribunal where both sides present their case and evidence. The tribunal will decide whether the dismissal was fair, followed a fair process, and was reasonable.
What the Tribunal Will Look At
In determining whether an employee was unfairly dismissed, the tribunal will consider:
- Employer’s Conduct: Did the employer follow a fair process, including written warnings or a formal grievance process?
- Notice Period: Employees are usually entitled to a notice period, and not providing one can affect the fairness of the dismissal.
- Reasonable Responses: Was there another option, less severe than dismissal, available to the employer, such as alternative employment or redeployment within the organisation?
Unfair Dismissal Compensation
If the tribunal finds in favour of the employee, the main forms of financial compensation are the basic award and the compensatory award.
- Basic Award: Calculated on age, gross weekly pay, and length of service. The basic award is capped, and statutory redundancy pay is often used as a guide.
- Compensatory Award: Covers financial losses caused by the unfair dismissal, such as lost wages, notice pay, and any other costs of finding alternative employment.
Wrongful Dismissal vs. Unfair Dismissal
It’s important to distinguish between unfair dismissal and wrongful dismissal. Wrongful dismissal occurs when the terms of the employment contract are breached during the dismissal process, usually around the notice period. Wrongful dismissal claims are based on breach of contract, not statutory rights.
Constructive Dismissal and When It Applies
Constructive dismissal occurs when an employee feels forced to resign due to their employer’s conduct. A claim for constructive dismissal may arise if the employer:
- Breaches a fundamental term of the contract
- Behaves in a way that destroys the employee’s trust in the employer
- Acts in a way that makes continued employment impossible
Trade Union and Health and Safety Issues
Employees dismissed for trade union activities, raising health and safety issues, or performing jury service are protected under the law.
Protected Characteristics and Discrimination
Employees dismissed due to a protected characteristic (age, gender, disability, civil partnership status) may also have a claim for discrimination.
Practical Tips for Employers: Unfair Dismissal Avoidance
Following a fair dismissal process can reduce the risk of unfair dismissal claims:
- Warn
- Follow the contract
- Justify
- Find alternative employment
- Document each step
Statutory Redundancy Pay and Financial Compensation
Employees dismissed for redundancy are usually entitled to statutory redundancy pay calculated on age, gross weekly pay, and years of service. Financial compensation in redundancy or unfair dismissal cases is to provide a financial safety net while the employee is looking for new employment.
Unfair Dismissal Traps
- Poor communication
- Not following procedures
- Ignoring employee rights
Conclusion: A Fair Process for Everyone
Unfair dismissal cases are about whether the employer’s actions were reasonable and whether the dismissal was fair. In unfair dismissal claims, both employee and employer benefit from knowing their rights and obligations under UK employment law. Take the time to follow a fair and open process, reduce the risk of disputes, and create a better working environment for all.
