Unfair dismissal is a statutory employment right that allows an employee not to be unfairly dismissed by an employer. Specialist unfair dismissal solicitors will tell you that claims for unfair dismissal are the commonest claim seen in the Employment Tribunal
There are many reasons why an employee may claim unfair dismissal, but there is a simple four part test of whether a claim can be made. We have summarised below the test criteria and suggest that you work through each criteria which will give you an indication of whether a claim for unfair dismissal can be made.
The Four Steps to making an unfair dismissal claim:-
1. Is the employee entitled to make a claim?
- Is he or she an employee?
- Is the employee in an excluded group?
- Has the employee worked a year?
- Has the employee made the claim within the time limits?
2. Has there been a dismissal?
3. Has the employer used a potentially fair reason?
4. Fairness of the dismissal?
Alternatively, call (020 7854 9098) to speak to Andrej Pungerl or Ruth Neil expert unfair dismissal solicitors and employment partners of Stone Joseph to advise you.
Can the employee make a claim?
Is the person working as an employee?
This may seem a trick question, but it can be a vital point for unfair dismissal solicitors. In most cases it will be clear if the person is an employee. If you employ someone or if you work under a contract of employment then the person is almost certainly an employee. So go to the next question.
The difficulty arises with agency staff, self employed workers or independent contractors, as the Court may determine that these are also employees. There are various tests the Courts use including
- Is there a contract that defines the working relationship?
- Does the employer have enough control?
- Are the terms in the contract consistent with an employee relationship?
The business test
- Is the worker in business on their own account, considering various factors such as whether the worker uses their own equipment, which party has the balance of financial risk and management, what the contract says, whether the worker can substitute another person in their role and various other factors.
Ultimately, each case should be analysed on its own facts and you should seek advice from employment solicitors if you are uncertain.
Is the person in an excluded group?
Most employees are protected against unfair dismissal but some classes of employees are not offered protection, such as: share fishermen, certain civil servants and the police.
Has the employee worked a year?
This is where a lot of employees are excluded from making a claim for unfair dismissal, as most solicitors will tell you. In order to make an unfair dismissal claim the employee must have at least one year of "continuous employment". The end of the period of continuous employment occurs when the employee's notice period expires; if no notice is given then it will end on the date of termination; or on the date when a fixed term contract expires.
Continuous employment is a complex area of law and where an employee has been employed for nearly a year advice should be sought from specialist employment solicitors to ensure you have the full picture.
Is the claim within the time limits?
A claim must be made to the Employment Tribunal within three months of the effective date of termination.
Statute defines the effective date of termination as, " where notice is given, the date on which notice expires, where no notice is given, the date on which the termination takes place, or in the event of a fixed term contract not being renewed, the date on which the contract expires".
There are variations to this rule, but the safest course if you are an employee who wants to bring a claim is to make it earlier rather than later - act as if time starts to run from the date you hear that you are to be dismissed, although legally this is not always the correct stance, it is the safest approach.
The Employment Tribunal can be very strict on the time limit rule and even if the claim is a couple of minutes late, the claim will be disallowed. If you are an employer this is a good defence to a claim but if you are an employee this can spell disaster. Being unaware of your legal rights is genuinely insufficient, so discuss the facts of your case with employment solicitors specialising in unfair dismissal cases. You should appeal any decision to dismiss you, at the earliest opportunity, so that you have the appeal decision within the three month rule.
Both employers and employees should read our practical hints as to how you deal with the procedure to increase your chances of being successful at resolving the matter in your favour.
Has there been a dismissal?
This appears obvious to anyone apart from employment solicitors. In most cases, you will know if there has been a dismissal or not - it's fairly evident from the facts.
Occasionally this area raises interesting questions of law, such as if the resignation words are clear enough, can a resignation in the heat of the moment be later withdrawn but perhaps this is only interesting to employment solicitors, who act on a lot of unfair dismissal claims.
Has the employer used a potentially fair reason?
Statute allows an employer to dismiss an employee for one of five potentially fair reasons. Employers who have had the benefit of specialist employment solicitors will be well aware that in order to prevent or defend an unfair dismissal claim the employer has to initially establish the dismissal of the employee occurs as a result of one or more of the following:-
- Capability or qualifications
Meaning the skill, aptitude, ability and health of the employee. Most cases involve the employee being put through a capability procedure and having their performance reviewed.
Examples include - rudeness, drinking, fraud and refusing to take instruction.
- Contravention of Statute
For example - the employee can no longer do their work because there continued work would be unlawful as they are disqualified from driving and work as a van driver
Some other substantial reason
This includes many issues from business efficacy to failing to adapt.
Employer's should normally give their employee the reason for the dismissal, at least by the time of the dismissal letter. The first three categories are the most usual.
Assertion of a statutory right
A claim can be brought if the employee's dismissal is for assertion of a statutory right. For example, if you have been dismissed and the reason for your dismissal is because of pregnancy and maternity, trade union membership, rights relating to pay deduction. There is no minimum qualifying period to bring such a claim.
Fairness of the Dismissal
This is usually the key issue for expert unfair dismissal solicitors - it lets them assess whether the claim is a good claim and is the only issue once all the earlier conditions have been met.
Although the test is set out in statute, it usually requires an experienced employment solicitor to assess if an employee has been fairly dismissed within the factual matrix of the dismissal.
Statutes states, " the determination of the question whether the dismissal is fair or unfair depends on whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and substantial merits of the case."
It is important to assess each case individually. There are two basic tests:-
- Band of reasonable responses
- Procedural fairness
Band of reasonable responses
The Employment Tribunal must assess if the response falls within the band of reasonable responses which a reasonable employer might have adopted. Would a reasonable employer have done what was done?
There was a statutory procedure until April 2009 which has now been repealed and now the ACAS guideline is to be used.
Please have a look at (FAQS: Grievance Procedure) which explains the new ACAS code on procedure.
Unfair dismissal Compensation
As any employment solicitor worth their salt will tell you - this is the key consideration for both the employer and the employee.
There are three remedies:-
Requiring the employer to treat the employee as if they have not been dismissed, making good arrears and conditions as if they had been employed.
Requiring the employer to give them back their job on the same or comparable level, on terms and conditions such as the Employment Tribunal would order.
Clearly, these two remedies are often impractical, as by the stage of an Employment Tribunal intervening there is mistrust on both sides.
Basic Award - this is either half a week or a week and a half's gross pay (depending on age) for each year of service. In 2009, a week's pay is capped at £350.00 per week.
Compensatory Award - is to reimburse you for any loss of earnings suffered.
Additional Award - for not complying with reinstatement or re-engagement
Uplift - for not complying with a fair procedure
Special Award - trade union, health and safety dismissals