Unfair Dismissal

 

Any potential claim for Unfair Dismissal starts with a dismissal where the employer is the one who has brought the contract of employment to an end.  

 

If you resigned your employment, then this will be Unfair/Constructive Dismissal which is dealt with below.

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If your employer has ended your employment, then you should consider whether your dismissal was fair. If your employer did not have a good reason for dismissing you and/or failed to follow a fair procedure when doing so you may well have a claim for Unfair Dismissal.

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Not all employees can bring a claim for Unfair Dismissal, you will need to have been employed by your employer for a minimum of two years . However, there are exceptions to this rule, for example if you have been dismissed because you are a whistle-blower or are dismissed due to pregnancy or maternity leave which is discriminatory.  There are other exceptions to the two year rule which may apply to you. 

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Also, if you are dismissed close to the two year deadline, but your statutory notice period would take you over that deadline, you can be deemed to have two years service.

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What is Automatic Unfair Dismissal?

 

As explained above, usually, an employee needs two years of continuous employment to claim unfair dismissal. However, individuals can claim automatic unfair dismissal even when they have been employed for less than two years. 

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An automatic unfair dismissal as defined under the Employment Rights Act 1996 means that an employer terminates employment for wrong reasons. This legislation details situations where a dismissal will automatically qualify as unlawful.

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The Equality Act 2010 identifies nine protected characteristics that every employer must safeguard in the workplace. This means if an employee is treated unfavourably or dismissed for reasons related to these characteristics, an employee can claim automatic unfair dismissal through discrimination without having two years of continuous employment.

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Another reason which is growing momentum are acts related to protected disclosures, workers’ rights, and freedom of association.  In whistleblowing cases an employee can have a solid case of automatic unfair dismissal if an employer dismisses them for raising concerns of wrongdoing in the workplace.

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Compensation for automatic unfair dismissal usually includes an amount paid to the worker for the time they spent out of work and lost income.  The calculation of this is multiplying the number of weeks/months without work.  There is a cap on the weekly amount of £700 per week for dismissals after 6 April 2024. There is a cap on unfair dismissal claims, currently £115,115 from 6 April 2024. 

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There is also an option for re-employment - reinstatement if wrongfully dismissed.

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What is Constructive Dismissal?

 

Constructive dismissal claims can arise for various reasons where an employee feels aggrieved about their employers' conduct.  We would not advise any employee to resign from their employment at least not without the take legal advice.  Our clients who we have represented have done so because they felt they had no other way, because they just could not continue to work in the conditions they were experiencing. They have felt forced to resign for bullying at work, pay problems, unfair performance management, unfair workloads, lack of support for disabilities etc. 

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Constructive dismissal claims are very difficult to pursue and, if you are considering resigning in contemplation of a claim to the Employment Tribunal, you must first seek legal advice.

 

When should you start a claim?

 

You must submit your claim to the Employment Tribunal within three months less one day of your dismissal or resignation. You use the last day of your employment as the first day when calculating the time limit. For example, if your last day of employment was 30 May, your claim would need to be submitted to the Employment Tribunal on or before 29 August.  

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Important

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Please note, before submitting your claim you will first have to go through the ACAS Early Conciliation Process. 

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Employment Tribunal time limits can be extended if you are going through the conciliation process when your Employment Tribunal time limit would normally expire. However, if you do not start the ACAS Early Conciliation Process within the normal time limit, you will not receive any extension to submit your claim.

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Employment Tribunal time limits are incredibly strict and if you have been dismissed you should seek legal advice immediately. Claims submitted “out of time” will not be accepted by the Employment Tribunal and in those circumstances your ability to pursue your claim will be lost.

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