Unfair dismissal claims are an important area of employment law in the UK, designed to protect employees from being unjustly removed from their positions. Understanding your rights and the process involved can be the key to effectively addressing grievances with your employer and getting the outcome you deserve.
With the help of our experienced Employment Solicitors, you can effectively work through an unfair dismissal claim in a simple, stress-free way. In this article, we will provide an overview of unfair dismissal claims, including how to bring a claim and what to expect in terms of outcomes and compensation.
If you are considering bringing a claim for unfair dismissal, book an initial consultation with one of our experienced employment solicitors by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk, or by completing our Free Online Enquiry Form.
In addition to office meetings, we offer remote consultations via video conferencing software such as Microsoft Teams so can assist you wherever you are based.
What is unfair dismissal?
Unfair dismissal is a legal term used in UK employment law to describe a situation where an employee’s termination from their job is unjustified or does not follow the correct legal procedures. This can occur under several circumstances, but fundamentally, it means that either the reason for dismissal is not legally valid or the employer did not carry out the dismissal using a fair and proper process.
Legally valid reasons for dismissal
Under UK law, employers must have a fair reason to dismiss an employee. These reasons can include:
- Capability or performance: The employee is unable to perform their job to the required standard.
- Conduct: The employee has behaved inappropriately or unprofessionally.
- Redundancy: The employee’s role is no longer necessary or sustainable for the business.
- Statutory illegality or breach of a statutory restriction: The employment cannot continue legally (e.g., a driver losing their driving license).
- Some other substantial reason (SOSR): A legitimate catch-all category that includes reasons not covered by the other categories, such as a business re-organisation that does not qualify as redundancy.
Fair process
Even if an employer has a valid reason, they must also follow a fair procedure. This typically involves:
- Giving the employee proper notice of the issues concerning their performance or conduct.
- Providing a chance to improve (in cases of capability or performance issues) or to respond to allegations (in conduct cases).
- Conducting a thorough investigation where necessary.
- Holding a formal disciplinary meeting, followed by a fair decision.
- Offering the right to appeal the decision.
- Carrying out a fair consultation process (in redundancy situations)
If an employer fails to meet these standards, the dismissal may be deemed unfair. This protection aims to ensure that employees are treated with fairness and dignity and have the opportunity to rectify issues or defend themselves against potential misunderstandings or unfounded accusations.
Who can make a claim?
In the UK, not all employees can make unfair dismissal claims. Understanding who qualifies is important for employees considering legal action after being dismissed. Typically, employees must have at least two years of continuous service with the same employer to qualify for making an unfair dismissal claim. This means they must have been working for the employer without significant breaks for at least two years before their dismissal.
Exceptions to the length of service requirement for unfair dismissal
Some dismissals do not require the two-year minimum service. These include dismissals that are automatically considered unfair due to the reason for dismissal being linked to:
- Discrimination: Dismissals related to race, sex, religion, disability, sexual orientation, or age are considered automatically unfair, and employees can make a claim regardless of their length of service.
- Whistleblowing: Employees who are dismissed for making protected disclosures (whistleblowing) are eligible to claim unfair dismissal without needing two years of service.
- Pregnancy and maternity rights: Dismissals due to pregnancy, maternity leave, or related reasons are automatically unfair.
- Asserting a statutory right: If an employee is dismissed for asserting a statutory right, such as asking for the minimum wage, paid holidays, or required breaks, they can claim unfair dismissal regardless of service length.
- Health and safety: Dismissals due to actions taken by the employee related to health and safety issues, including leaving work in dangerous situations, are automatically considered unfair.
What are the steps for bringing unfair dismissal claims?
The process for making unfair dismissal claims may appear intimidating at first, but with the assistance of our experienced employment solicitors, every step is designed to be simple. We have a tried and tested approach to handling unfair dismissal claims that make it as straightforward as possible for you. The process for bringing a claim has been outlined below:
- Appealing the decision to dismiss
If you have been dismissed, you should be offered the right to appeal the decision. Your former employer should notify you how to do this, often referencing a policy that will set out the correct procedure to follow. You will have strict deadlines in which to submit this. Your appeal should set out the grounds for your appeal and why you consider the decision unfair. Your former employer will then consider your appeal and likely hold another hearing with you before providing you with their final outcome. There will be no further right to appeal the outcome of the appeal.
- Acquiring and completing the ET1 form
Before we can proceed to an Employment Tribunal, we must first contact ACAS (Advisory, Conciliation and Arbitration Service) for Early Conciliation. This is a mandatory process aimed at resolving disputes without the need for a tribunal. If Early Conciliation does not resolve the issue, ACAS will issue a certificate, which you need to proceed with a tribunal claim.
- Submitting your unfair dismissal claim
After obtaining your Early Conciliation certificate, we can then complete the ET1 claim form, detailing the nature of your claim and the events leading to your dismissal. We will then submit the ET1 form to the relevant Employment Tribunal. This must be done within three months less one day from the date of your dismissal.
- The response
Your employer will be asked to complete an ET3 form in response to your claim, outlining their defence against your allegations.
- Pre-hearing review
Depending on the complexity of your case, there may be preliminary hearings or case management discussions to determine the issues that need to be addressed during the main hearing.
- The tribunal hearing
You will need to attend a tribunal hearing where both parties can present their evidence and arguments. You and your employer will present evidence, call witnesses, and respond to questions. Legal representatives, if you have hired any, will typically handle most of the legal arguments and cross-examination of witnesses.
- Decision
After considering all the evidence, the tribunal will make a decision on whether your dismissal was unfair. The decision can be given on the day of the hearing or you may receive it later in writing.
How do I succeed in an unfair dismissal claim?
Succeeding in an unfair dismissal claim requires a combination of thorough preparation, a clear understanding of employment law, and strategic presentation of evidence. The most effective way to find success in these claims is by working with experienced legal professionals, such as our employment solicitors. Our expertise in this area of law will significantly improve your chances of a successful claim.
Is there a minimum length of employment required for unfair dismissal claims?
In the UK, the right to claim unfair dismissal is not universally accessible from the start of employment. The general rule is that employees need to have completed two years of continuous service with their employer to be eligible to make an unfair dismissal claim. This rule applies to most cases of dismissal, ensuring that only those with a more established employment history with the employer can claim unfair dismissal.
Are there any unfair dismissal claims that do not need two years of service?
Yes, there are certain exceptions to the 2-year rule which are designed to protect employees from severe forms of unfair treatment that are viewed as particularly unjust or harmful, regardless of how long they have been employed. Here are the key scenarios where the two-year service requirement is waived:
- Pregnancy or maternity-related: Dismissals connected to pregnancy, maternity leave, or related conditions are automatically considered unfair.
- Family leave: This includes dismissal related to paternity leave, adoption leave, or time off for dependents.
- Whistleblowing: Employees dismissed for making protected disclosures (whistleblowing) about wrongdoing within the organisation.
- Asserting a statutory right: If an employee is dismissed for asserting a right granted to them under UK law, such as the right to the national minimum wage, paid annual leave, or rest breaks.
- Trade union membership and activities: Dismissals related to joining or participating in trade union activities.
- Health and safety: Employees dismissed for raising or acting on concerns about health and safety in the workplace.
- Jury service: Being dismissed for taking time off to attend jury service.
- Discrimination: Dismissal on the grounds of race, gender, religion, sexual orientation, disability, or age.
How long do unfair dismissal claims take?
The duration of an unfair dismissal claim in the UK can vary significantly depending on a number of factors, including the complexity of the case, the availability of the Employment Tribunal, and whether the case is contested. Although unfair dismissal claims can take quite a while – especially for more complex claims – with the assistance of our specialist employment solicitors your case will be handled as efficiently as possible. This will ensure your claim is handled and finalised as quickly as possible.
What outcome should I expect for an unfair dismissal claim?
When pursuing an unfair dismissal claim, it is important to understand the possible outcomes that might arise from the Employment Tribunal’s decision. The aim is to ensure that any dismissal is fair and, where it is not, to provide appropriate remedies. Here are the typical outcomes you might expect for unfair dismissal claims:
Reinstatement
Reinstatement means that you are put back into your job as if you had never been dismissed. This outcome is relatively rare because it requires both parties to be agreeable to continuing the working relationship.
Re-engagement
Re-engagement involves the employer re-hiring you, but potentially in a different role or at a different location, depending on what is agreed upon or deemed appropriate by the tribunal.
Compensation
The most frequent outcome of an unfair dismissal claim is compensation, which is divided into two parts – a basic award and a compensatory award.
How much compensation can I expect to receive?
If your unfair dismissal claim is a success, the compensation you receive is intended to put you in the position you would have been in had you not been unfairly dismissed. The amount can vary significantly based on the circumstances of the case, but here is a general guide on how compensation is calculated and what you might expect:
Basic award for unfair dismissal claims
Similar to a redundancy payment, the basic award is calculated based on your age, weekly pay, and length of service. The formula is:
- 0.5 week’s pay for each full year of service where you were under 22 years of age.
- 1 week’s pay for each full year of service where you were between 22 and 41 years of age.
- 1.5 week’s pay for each full year of service where you were 41 years old or older.
- There are caps on the weekly pay and the maximum number of years that can be counted, which are subject to periodic updates.
Compensatory award for unfair dismissal claims
This award compensates for the actual loss suffered due to the unfair dismissal, such as loss of earnings, expected future earnings, and fringe benefits (e.g., pension contributions, health insurance). This part of the award is capped at the lower of either 52 week’s pay or an annual statutory limit, but must be reasonable and justifiable based on the evidence provided.
Do I need to instruct an employment lawyer for an unfair dismissal claim?
Deciding whether to instruct a specialist employment lawyer for an unfair dismissal claim is an important consideration. While it is not mandatory to have legal representation to make or defend a claim at an Employment Tribunal, there are several factors to consider that can influence this decision. By working with an experienced team, such as our employment lawyers, you will enjoy a wealth of benefits that make the claims process easier and more effective. These include:
- Expert guidance: Employment law can be complex and nuanced. As we specialise in this area, we can provide expert advice and guidance, helping you understand the strength of your claim and the likelihood of success.
- Case preparation: Our employment lawyers can help prepare your case, from gathering and organising evidence to drafting legal documents. They can ensure that all procedural requirements are met, which is key in avoiding unnecessary delays or procedural errors.
- Representation at hearings: We can represent you at tribunal hearings, presenting your case effectively and professionally. We are experienced in the examination and cross-examination of witnesses, which can be pivotal in the outcome of your case.
- Negotiation of settlements: Often, unfair dismissal claims are settled before reaching a tribunal. Specialist Unfair Dismissal Solicitors can negotiate on your behalf to secure the best possible settlement, ensuring your interests are well represented.
What is the difference between unfair dismissal, wrongful dismissal, and constructive dismissal?
Understanding the distinctions between unfair dismissal, wrongful dismissal, and constructive dismissal is important for employees and employers alike to navigate employment disputes effectively. Each type of dismissal carries specific legal definitions and implications:
Unfair dismissal
Unfair dismissal refers to a scenario where an employee is dismissed from their job in a way that does not comply with statutory procedures or is for a reason not legally recognised as fair by employment law.
Wrongful dismissal
Wrongful dismissal occurs when an employer breaches the employment contract during the dismissal process, such as failing to provide proper notice or violating specific contractual terms.
Constructive dismissal
Constructive dismissal happens when an employee resigns due to the employer’s conduct fundamentally breaching their employment contract, making it unreasonable to expect the employee to continue working.
How are unfair dismissal claims funded?
Navigating the funding options for unfair dismissal claims is something you will want to consider before starting legal action. Understanding the various methods available can help manage the financial aspect of pursuing a claim effectively. Below is a guide to the common funding options:
Private funding for unfair dismissal claims
You can choose to fund the claim yourself, paying legal fees out of pocket. This option requires careful financial planning as costs can accumulate, especially if the case is complex or prolonged.
Damages Based Agreement (No Win, No Fee)
Under a Damages Based Agreement (DBA), your solicitor agrees to charge no fee if the claim is unsuccessful. If the claim is successful, the fee is typically a percentage of the compensation awarded. It’s important to thoroughly understand the terms, as you may still be responsible for other costs, such as court fees or the opponent’s costs if the case is lost.
Where are your employment solicitors based?
Our specialist employment solicitors are happy to undertake the initial meetings remotely through video calls. In addition, and to make sure we can help as many people as possible, our team at Elite Law Solicitors has offices in multiple locations across the UK. Our offices are based in:
- Amersham
- Bath
- Bedford
- Brighton
- Ebbsfleet
- Elstead
- Hitchin
- Leighton Buzzard
- Raunds
- Southampton
- St Albans
- Surbiton
We cover the surrounding areas of these locations, so if you are unsure if we can help you based on your location just get in touch. We will be more than happy to discuss our services with you and let you know if we can help.
How Elite Law Solicitors can help
When facing an unfair dismissal claim, having expert legal support can make a huge difference in the outcome. At Elite Law Solicitors we have a team of experienced employment solicitors who specialise in employment law and provide comprehensive assistance to employees navigating the complexities of unfair dismissal claims. With our guidance, your chances of a successful claim will increase exponentially. Better still, we make the entire process easy to follow and as stress-free as possible for you.
In addition to unfair dismissal claims, we can also assist with the following areas of employment law:
- Contracts, Policies and Procedures
- Employment Tribunal Claims
- Disciplinary, Capability and Grievance Procedures
- EDI and Harassment Policies
- Flexible Work Requests
- Protected Conversations and Settlement Agreements
- Restrictive Covenants and Employee Competition
- Settlement Agreements
If you have any queries in relation to making unfair dismissal claims, or require specialist legal advice or assistance on any other area of employment law, please get in touch with our one of our specialist employment solicitors today by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk, or by completing our Free Online Enquiry Form.
The content of this article is for general information only. The information in this article is not legal or professional advice. If you require legal or professional advice you should obtain independent expert advice from qualified employment solicitors such as those within our firm.
