Unfair dismissal law

A dismissal from your employment can be a difficult and distressing concept to face. 

Who can bring a claim?

For you to be able to bring a claim for Unfair Dismissal, generally you will need to have 12 months’ continuous service as an employee.  However, if your dismissal was for one of the automatically unfair reasons, a claim can be brought from the first day of your employment.  Any dismissals for a reason connected to one of the nine protected characteristics under the Equality Act 2010 is likely to be unfair.  These include discrimination on the grounds of age, disability, marriage and civil partnership, gender reassignment, pregnancy and maternity, race, religion or belief, sex or sexual orientation.  Dismissals connected to Health and Safety, trade union membership, asserting a statutory right, status as a part time or fixed term employee, or making a protected disclosure (often called whistleblowing claims) are also likely to be automatically unfair.  It will also be an unfair dismissal if your employer dismisses you one week short of your 12 months’ service without a fair reason. 

Furthermore, if your employer acts in a way which undermines the employment relationship between you, or they commit a fundamental breach of contract (such as withholding wages), you may be entitled to resign and claim Constructive Dismissal.  This means that your resignation is actually treated in law as a dismissal because of the way your employer has acted.  These claims are notoriously difficult to bring and you should seek detailed legal advice before considering pursuing this course of action.

The ACAS Code of Practice

The ACAS Code of Practice (“the Code”) was introduced in April 2009, repealing the statutory disciplinary and grievance procedures.  The Code emphasises that employers and employees should always seek to resolve their workplace issues internally before resorting to legal action.  It sets out the principles for handling disciplinary and grievance situations.  The law on Unfair Dismissal requires your employer to act reasonably, and ultimately a Tribunal will decide what was reasonable in the circumstances.

A fair procedure should include being invited to an internal hearing where you have the right to be accompanied by a work colleague or trade union representative, given all the details of the alleged misconduct or incapability, as well as offering you the right of appeal if you are dismissed.  The Code does not apply to redundancy dismissals. 

Employment tribunals are required to take the Code into account when considering Unfair Dismissal claims.  If your employer has unreasonably failed to follow the Code, any award can be increased by up to 25%.  However, if they feel you have unreasonably failed to follow the Code, they could reduce your award by up to 25%.

What Happens Next?

If an Employment Tribunal finds that your dismissal was unfair, you could be re-engaged or reinstated into your previous role, or you may merely wish to seek compensation. 

If successful in your Unfair Dismissal claim, you could be entitled to a basic award (equivalent to your redundancy pay if you were made redundant) calculated on your age, gross weekly pay (capped at £400 per week), and length of service.  In addition, you may be entitled to a compensatory award, which is further compensation designed to place you back in the financial position you would have been in but for the unfair dismissal and to cover any potential future financial loss.  If you have been discriminated against as well, it may be possible to be awarded damages for injury to feelings.

An additional award may also be made if your employer fails to comply with an Order made by the Tribunal for reinstatement or re-engagement, unless they can show that it was not practicable to comply with the Order.  An additional award of between 26 and 52 weeks' pay can be made, capped at £400 per week.