Dismissal from employment Birmingham : Advantage Consulting

Dismissal from employment

I have been dismissed from my job. What are my options?

Being dismissed from your job can be a very stressful and emotional time. It is therefore important that if you are unsure about your rights you seek the appropriate advice. Legislation is in place to protect employees and gives you the right not to be unfairly dismissed.

If a person worked for an employer before 6 April 2012, they have to have a qualifying period of one year of employment before they can bring a claim for unfair dismissal. On or after 6 April 2012 the qualifying period increases to two years.

What is dismissal?

There are a number of ways in which a dismissal can occur, from the obvious 'Your fired' scenario in which your employer does not give you any notice to a situation where an employer does give you the correct notice period. A dismissal also occurs when a fixed term contract expires or when an employee is forced to retire.

A dismissal is the termination of your employment relationship with your employer.

A dismissal can be verbal or in writing so verbal dismissal can be a dismissal.

My employer told me on the telephone that he did not want me back at work, can he do this?

A dismissal can be verbal or in writing so a verbal dismissal can be a dismissal.

What is constructive dismissal?

Constructive dismissal occurs when your employer's actions are such that you would find it impossible to continue working for that employer (e.g. bullying). By its actions the employer has fundamentally breached your contract of employment and you feel that you have no alternative but to resign. This resignation must be in timely fashion. This is a very drastic action as it will cut off your income and very few people can afford to be without their wages. It is vital therefore that if you find yourself in a difficult situation at work that you seek advice before taking any action as this is a complicated area of law

You should also note that, it is compulsory in most cases for you to raise a written grievance with your employer before you can lodge a constructive unfair dismissal claim at the Employment Tribunal and to follow the grievance procedure. We recommend that you seek advice to ensure that you comply with the procedures and do not damage your case.

What is wrongful dismissal?

This is when a term of your contract of employment is broken during the dismissal process, for example, by your employer failing to give the correct notice period.

When is a dismissal fair?

In general terms, if an employer dismisses you for one the following reasons, it will usually be deemed "fair":

  1. Conduct
  2. Capability
  3. Retirement
  4. Redundancy
  5. Some other substantial reason
  6. A legal requirement e.g. you work as a driver and you have lost your driving licence.

(In the case of retirement, the need to act reasonably and follow the statutory minimum dismissal procedure will not apply. In that case the fairness of the dismissal will depend on whether your employer complied with the duty to consider working beyond retirement).

Your employer must then show that they had a valid reason for dismissing you and that they acted reasonably in the circumstances.

Your employer must also have undertaken a reasonable investigation into the circumstances of the dismissal and followed the procedures in the Employment Act 2008, as set out in the Acas  Code of Practice on Discipline and Grievance (go to the following link to access the Code:  http://www.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-on-disciplinary-and-grievance-procedures.pdf )

Failure to follow these procedures can mean that your dismissal is unfair. If your employer dismisses you without following the procedures any compensatory award may be increased by up to 25 per cent. Similarly, if the procedure was not completed and the fault lay wholly or mainly with the employee, any compensatory award will be reduced by up to 25 per cent.

The Employment Tribunal would also review whether the employer has acted reasonably but reached the wrong conclusion. This can mean that the dismissal might not be held to be unfair even though the Employment Tribunal agrees that you should not have been dismissed.

What is reasonable?

This is not a concept which is easily defined. However, the Employment Tribunal is likely to consider the following:

  • Whether the employer had a genuine belief that the employee had done something wrong
  • Whether the employer had reasonable grounds to believe this
  • That there was a reasonable investigation into the circumstances
  • That the employee was given an opportunity to refute/discuss any allegations/concerns
  • That the employee was offered a right of appeal against any decision
  • That the employer acted as you would expect any other reasonable employer to act.

Automatically unfair dismissal

There are a number of reasons for dismissal which can result in a dismissal being automatically unfair, for example, if you were dismissed because you were pregnant or you were a member of a trade union.

In most cases of automatic unfair dismissal the qualifying period of two year's service does not apply.

What notice period am I entitled to?

You are entitled to either your contractual notice period (set out in your contract of employment) or your statutory notice period, whichever is the greater.

What is the statutory notice period?

The statutory notice period you should receive from your employer is:

  • one week if you've been continuously employed for between one month and two years
  • one week for each complete year (up to a maximum of 12) if you've been continuously employed for two or more years

When will I get the wages that I am owed?

Your employer should make a final payment to you and this should include your normal pay up to your date of termination, any accrued but untaken holiday, any pay in lieu and any other payments such as a bonus payment or overtime.

I think that I have been treated unfairly - can I bring a claim?

It is possible that you may be able to bring a claim for unfair dismissal if you have been dismissed and you are an employee. Usually you will require two year's service to be able to bring a claim but there are a few exceptions.

Time limits

From 6 May 2014, an employee is obliged to contact Acas to go through the Early Conciliation process prior to begin able to bring an Employment Tribunal claim. You should make your application to the Employment Tribunal as soon as you have been given notice of dismissal and the Employment Tribunal should receive the claim form within three months of your effective date of termination. If you do not submit your claim form within this time frame then it is very likely that you will be held to be out of time unless it was not reasonably practicable for you to bring the claim within that time frame and that you have made the claim as soon as it was possible.

The time limit will be extended by a further three months where you have reasonable grounds for believing that a dismissal or disciplinary procedure (statutory or otherwise) is still in progress at the point where the normal time limit would have expired. You should seek advice on this point as it is a very technical area and a misunderstanding of the law can lead to you missing the deadline for submission of your claim.

How do I bring a claim?

Assuming that you are eligible to bring a claim you would follow the Acas procedure and if that proves unsuccessful you can then submit a claim form to the Employment Tribunal. You will have to show that you have been dismissed and that you have complied with the statutory procedures where applicable.

How much will it cost me?

It is the general rule in Employment Tribunals that each party bears their own costs and therefore if you instruct a solicitor you will have to pay for him/her. You should seek clarity as to the likely costs before embarking on a claim.

What happens if I win?

If you are successful in your tribunal claim, the most likely remedy is an award of compensation. This is split into the basic award and the compensatory award. The basic award compensates you for loss of your job security and continuous service. The compensatory award compensates you for your loss of earnings as a consequence of the dismissal. This will be a sum that the Employment Tribunal regards as reasonable in the circumstances (subject to the statutory cap). The Employment Tribunal can also order that you are given your old job back or another job within the organisation. This is rare. There is also the potential for an additional award if the dismissal is held to be automatically unfair.

How can we help?

Our experienced employment department can help you in all aspects relating to your employment, from dismissal to discrimination claims.

For information of users: This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.