Who Can Claim Unfair Dismissal?

If you have been dismissed from your employment you may be able to claim unfair dismissal. Unfair dismissal is a legal term which applies to a dismissal from employment which is deemed by an employment tribunal to be unfair.

Unfair dismissal is a right which comes from the Employment Rights Act 1996. It is therefore a statutory right. It can only be claimed in an employment tribunal and not in a court.

Employment tribunals are very similar to courts but theoretically they have more relaxed rules on procedure and in relation to evidence. I say in theory because in some areas tribunals are just as strict when it comes to following the rules in relation to evidence.

So who can claim unfair dismissal? There are certain criteria that must be met.

The first is that you must have been an employee. Being a worker such as an agency worker or being self-employed is not enough.

The second is that you must have at least one year's continuous service. There are some exceptions to this rule. If you have been dismissed for such things as your trade union activities, performing health and safety duties or whistle blowing you may be able to make a claim in your first year of service. This list is not exhaustive but these are the most common exceptions.

The third is that you need to have been dismissed. This can be with or without notice from your employer. It can also include a situation where you are forced to resign because your employer has breached a major term of your contract, for example where your employer breaches the implied term of trust and confidence.

If you meet the above criteria then you may be able to bring a claim for unfair dismissal. Whether or not your dismissal was fair depends on the reason for the dismissal, whether the statutory dismissal procedure was followed and whether a generally fair procedure was followed.

For your employer to fairly dismiss you it first must show that the reason for the dismissal was a potentially fair reason under the Employment Rights Act 1996. The most common potentially fair reasons are (mis)conduct, capability (either a lack of skills or ill health making you incapable) and redundancy.

Even if your employer can show that it has dismissed for a potentially fair reason then it must still show that it has followed the statutory dismissal procedure. To comply with this it must write to you giving you the reasons why it contemplates dismissing you and invite you to a meeting discuss the situation. It must give you adequate time to prepare for the meeting and give you all the information it will be relying on at the meeting. At the meeting it must listen to your representations. It should make a decision following the meeting and confirm it in writing. If the decision is taken to dismiss you then you should be given a right of appeal. If you do appeal your employer should hold an appeal meeting and following the meeting it should confirm the outcome in writing. If this procedure is not followed the dismissal will be automatically unfair.

Finally your employer must follow a fair procedure. What amounts to a fair procedure depends on the circumstances of the case. So for example if you have been dismissed for misconduct then your employer needs to have fully investigated the situation, let you know what they have found out during the investigation, given you an opportunity to have your say at the disciplinary meeting and considered whether in the circumstances it would be fair to dismiss you. A failure to follow a fair procedure may result in a finding of unfair dismissal.

If you do succeed you may be able to claim re-instatement or re-engagement and you can claim compensation. You will be able to get a basic award which is compensation for being unfairly dismissed plus you can claim your loss of earnings if you have not got another job or you have got another job but it pays less. There is a cap on the amount of compensation that can be claimed in the employment tribunal in unfair dismissal cases. The cap is GBP60,000 at the moment. Few people reach the cap though. In fact the average amount of compensation awarded in unfair dismissal claims is only about GBP9,000.

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