Employment Compensation Claim Specialists
Do you think that you been unfairly dismissed? Our experienced Unfair Dismissal Solicitors understand that losing your job causes enormous stress. We strongly recommend early legal advice from an expert employment law solicitor.
Our Solicitors provide legal advice to both employers and employees on Unfair Dismissal Compensation Claims throughout Wiltshire, Hampshire, Dorset, Somerset and further afield from our offices in Salisbury, Andover, Fordingbridge and Amesbury.
How our Solicitors can help you
- By letting you know whether you have a case for unfair dismissal
- By negotiating with your employer for compensation for having been unfairly dismissed
- By representing you at an employment tribunal should your claim come to this
To find out more about whether you are likely to have a strong employment tribunal claim for compensation, simply call our employment lawyers now on FREEPHONE 0800 1404544 or Salisbury (01722) 422300.
Initial legal advice on the phone is always FREE.
What is Unfair Dismissal?
Every employee, including part-time workers, has the right not to be unfairly dismissed. Unfair dismissal does not, however, extend to the self-employed.
To win an Unfair Dismissal Claim, the employee must have completed two years’ service with their employer [subject to certain exceptions – see below] and must be able to prove they have been dismissed.
Have I been ‘dismissed’?
When considering whether or not you have been unfairly dismissed, the first step is to check whether in the eyes of the law you actually been ‘dismissed’. Surprisingly it’s not always easy for employees to distinguish when they have been dismissed and when they have resigned from their job. For example:
- Your employer says to you ‘either resign or I will dismiss you’ and you resign
- You resign because your employer breaches a term of your contract
- Your fixed term contract is not renewed
- Your employer uses language which makes you think they are dismissing you, and you then walk out
In these situations although there has not been an express dismissal, an Employment Tribunal will probably conclude you were dismissed. If you are unsure whether or not you resigned or were sacked, then make sure you contact one of the experienced unfair dismissal lawyer in our team who will be able to confirm whether you were sacked or not.
What is a ‘fair’ reason for a dismissal?
Employment law gives employers 5 basic reasons that are considered fair. To avoid unfair dismissal, the employer must show that the dismissal was for one of these five reasons:
Redundancy arises either when an employer plans closing all or part of a business at the location where the employees work; or where thebusiness no longer needs as many workers to carry on particular work. Full and proper procedure must be followed for redundancy to be fair. Failure to do so is likely to result in the employee being entitled to claim Unfair Dismissal as well as a 10-50% uplift in the compensation award.
The employee may have committed or been accused of a criminal offence at work or out of working hours. It may be reasonable to dismiss that worker; for example if the employee needs a driving licence to conduct their work and they lose their licence, it may be necessary to sack them.
If an employee is not up to the job for which they are employed, does not have the right job qualifications or if they are ill and absent from work for long periods then dismissal under capability may be reasonable.
Employers must follow proper procedure as failure to do so is likely to result in the employee winning an Unfair Dismissal Compensation Claim and an increase in the compensation award.
Persistently breaking work rules, theft or fraud are the most common reasons for dismissal.
As with any dismissal, employers must ensure the dismissal is reasonable in the circumstances and that full and proper procedure has been followed as failure to do so is likely to result in the employee winning an Unfair Dismissal Claim with an increase in compensation.
- Some other substantial reason
If it can be shown that the reason for the dismissal was a ‘substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held’ the dismissal is regarded as potentially fair even if it is not one of the other four reasons above.
If you are unsure whether or not any of these 5 “fair” reasons apply to you, then then call one of our experienced employment lawyers who can make that judgement call for you.
Exceptions to the 2 year Unfair Dismissal qualification period
There are a number of exceptions to the requirement for 2-year continuous employment in order to qualify for unfair dismissal. The most common of them include:
- Dismissal for keeping to health & safety rules.
- Belonging to refusing to join a trade union, or taking part in trade union activities at an appropriate time.
- Taking part in protected industrial action.
- Dismissal in relation to pregnancy and maternity rights.
- Dismissal on account of Sex, Race, Age or Disability Discrimination [in this particular case, a worker is likely to be better off making a discrimination rather than unfair dismissal claim – because compensation payments are higher in discrimination cases
- Being sacked for “whistleblowing”, where disclosure is in the public interest.
Unfair process of dismissal
Even if an employer shows that the dismissal was for one of the five fair reasons, they must still satisfy an Employment Tribunal that full and proper procedure was followed. These procedures are contained within the ACAS Code of Practice.
Often this will be a process that has been agreed with a trade union representative (especially in the case of redundancies), or it might be a process that is laid out in the company guidelines. If they fail to follow this process, even if they have a valid reason for dismissing you, it could still count as a case of unfair dismissal.
Employers must follow correct procedures in sacking workers. Statistics show about 97% of employers lose unfair dismissal claims by not following procedure correctly.
What is a ‘fair’ dismissal procedure?
The ACAS Code of Practice sets out what is a fair disciplinary procedure. The following is a basic outline of the process any employer should follow:
- Step 1 – Notify the employee in writing of the details of the alleged misconduct or details of any poor performance. The employee should be informed of what the outcomes of any disciplinary meeting may be so that they can prepare adequately. Lastly, the notification should provide copies of any evidence the employer is relying on, details of the time and date of the disciplinary meeting and it should tell the employee of their right to be accompanied to the meeting.
- Step 2 – The disciplinary meeting has the main purpose of the employer explaining to the employee what the problem is and showing them what evidence they have to support the disciplinary. The employee should be given the opportunity to answer any case against them and provide any evidence of their own. If the employee has any questions, these should be answered now.
- Step 3 – After a decision is reached, the employee should be notified in writing of the outcome. It is at this stage that a first or final warning can be issued, depending on the seriousness of the situation. If the offence is one of gross misconduct an employer may decide to dismiss the employee straight away.
- Step 4 – When the employee receives notification of any disciplinary action to be taken against them, they should also be informed of their right to appeal the decision.
The need to claim within 3 months
It is essential that any application for unfair dismissal is made within three months of the date of dismissal. Failing to make an application within that time means you simply lose your right entirely.
Be aware delays caused by an appeal procedure – if you’re appealing your dismissal and the internal appeal takes more than three months, and you haven’t made your unfair dismissal application in the meantime, you have lost your right to do so.
As this is a relatively tight timescale, if you believe that you have been unfairly dismissed then you should seek legal advice as soon as possible.
Reasons for automatic unfair dismissal
As well as reasons for dismissal that might count as unfair and unfair dismissal processes, there are also some reasons for dismissal that count as being automatically unfair. Typically, these reasons relate to your statutory employment rights or your right not to be discriminated against.
For example, if your employer dismisses you because you are pregnant or because you want to take maternity, paternity or adoption leave, this is automatically unfair. If you are dismissed because of your gender, race, disability, age, religion or sexual orientation, this is automatically unfair on grounds of discrimination.
You can also have a potential employment tribunal claim for automatic unfair dismissal if you are sacked for taking parental leave or time off for dependents, if you are dismissed for refusing to work in a shop on a Sunday or if you make a public interest disclosure.
As there are so many ways in which dismissal could count as unfair, if you think you might have a case of unfair dismissal compensation, it is definitely worth speaking to a specialist unfair dismissal solicitor about the matter.
An automatic unfair dismissal claim, like any other claim for being unfairly dismissed, must be brought before an Employment Tribunal within 3 months of the date of the termination of your contract. If this time limit has passed then you cannot bring a claim.
My employer dismissed me because I am pregnant claiming the company cannot cope with my absence during maternity leave. Is this a fair reason?
Any dismissal for reasons like this is referred to as an ‘automatically unfair dismissal’. This means that your employer has sacked you for exercising your employment rights – which is illegal. An employer cannot sack someone just because they may have to take maternity leave in the future.
The following are some examples of an employee’s general employment rights that, if they are dismissed because they have exercised, will count as an automatic unfair dismissal:
- Taking time off for the care of dependants
- Discrimination on the grounds of race, gender, gender reassignment, sexual orientation, age, religion or disability
- Time off for public service (such as jury service)
- Whistle blowing
- Transfer of Undertakings (protection against dismissal during business mergers)
- Maternity/Paternity leave
- Unfair redundancy selection
- Forced early retirement
- Part-time or flexible working
- Trade union membership
In the case of any automatic unfair dismissal, it does not matter how long the employee was employed – as the 12 month continuous employment requirement doesn’t apply.
Are all employees entitled to claim unfair dismissal ?
No. Some workers are unable to bring an unfair dismissal claim due to the nature of their job, including:
- Police officers
- Members of the armed forces
- Registered dock workers
- Employees above the UK retirement age (65)
- Independent contractors or freelance workers
However if you do fall into one of these categories and feel like you have been treated unfairly, it is still a good idea to get specialist legal advice concerning your rights.
Do I need a solicitor in claiming unfair dismissal?
To make an application for unfair dismissal before an Employment Tribunal you do not have to have legal representation. You can represent yourself.
However employment law regarding unfair dismissal is an extremely complex and fast changing area of law. Retaining a specialist Unfair Dismissal Solicitor to represent you will ensure your best chances of success against your employer.
An experienced Unfair Dismissal Solicitor will know which parts of your case are the strongest and how to present these arguments in order to receive the maximum compensatory award from the Tribunal.
Not only this, but a solicitor also knows how to deal with evidence and procedure. It is worth noting that a claimant can be penalised if they Act outside of procedure and if the Tribunal considers their actions to be unreasonable. Penalisation is usually given by a reduction in the amount of compensation awarded. If you appoint an unfair dismissal solicitor, the chances of this happening will be significantly reduced.
If your employer wants to avoid your unfair dismissal claim going to the employment tribunal, they will probably suggest what is known as a settlement agreement (or compromise agreement) to settle your claim for an amount agreed with you.
To make a settlement agreement binding, you are going to need independent legal advice– which your employer will normally pay for. Our team are specialists in these kind of agreements.
Click here to read more about settlement agreements and how they work
If I win my unfair dismissal claim, can I get my job back?
The Employment Tribunal can order an employer to reinstate an ex-employee following a successful unfair dismissal claim. This means that the employee either gets their old job back or is put into a similar role.
If an Employment Tribunal orders reinstatement, the employee can also claim compensation for earnings from the date of dismissal to the date of reinstatement.
However, orders for reinstatement are highly unusual. Why?
Firstly many employees do not want their job back, particularly since not only have they been sacked but they have now successfully taken their old boss to a tribunal.
Secondly Employment Tribunals are often reluctant to force the employer to take an employee back especially if there has been some misconduct by the employee. However our unfair dismissal lawyers can always argue the case for reinstatement at your request and the Tribunal will take this into consideration.
Costs and Employment Tribunals
Employment tribunals can award costs against either party but rarely do. It is better to assume both parties will bear their own costs in any unfair dismissal claim.
My employer has made me redundant – can I claim unfair dismissal?
An employer can make an employee redundant provided they use a fair selection process and fair procedure. This requires the employer to discuss the reasons for redundancy with an employee, giving the employee adequate notice and where necessary paying out a redundancy package.
There are fixed notice periods that any employer must provide to make an employee redundant. These vary and are dependant on the employee’s length of service as follows:
- If the employment was between 1 month and 2 years – 1 week’s notice
- If employed between 2 and 12 years – a week’s notice for every year of employment
- If employed for 12 years or more – 12 week’s notice
Click here to read more about redundancy
Contact our Unfair Dismissal Solicitors
Our specialist employment law solicitors can advise on how to dismiss someone fairly as well as dealing with situations where Unfair Dismissal has occurred. Following correct procedure is essential.
For specialist legal advice from an expert Unfair Dismissal Solicitor contact our Salisbury, Andover, Fordingbridge or Amesbury offices today. And don’t forget our FREE initial phone consultation.