In my experience as a solicitor who specialises in workplace issues, getting fired could be the best day of your life! “Could be”. If they didn’t want you, take notice. If your organisation was wrong to terminate you, then they are fools – and would you really want to work for such people? And if, in your heart of hearts, your employer was right to fire you, then they have put you down like a kind vet does to a poorly dog.
Either way, thank goodness you have been fired! Thank them for it. They have set you free. You were wasting your time and that wastage is now over. Providing you have a roof over your head and food on your table, all is not lost.
As Hal Lancaster put it in the Wall Street Journal, “Getting fired is nature’s way of telling you that you had the wrong job in the first place.”
Please don’t think that I’m being flippant about what is usually a dreadful experience; all I am suggesting that, if you disconnect your emotions and analyse what has happened to you, then to celebrate is to be logical.
The second thing that you should do once you have been sacked is to meditate over the following questions:
- What is your purpose in life?
- What are your values?
- If you could do any job in the world, what would it be?
As Confuscious put it: “Choose a job you love and you will never have to work a day in your life.” Rarely have I met someone who was fired from a job that they truly loved; that really let their full talents be used.
So, once you have got over that immediate, sick feeling of being canned, use this precious time wisely to ponder the big questions. Once enmeshed in a job – particularly one which consumes your mind, even when you’re not at work – opportunities to dwell on the fundamental questions about our own purpose is rare. You’re free: untethered to any job or profession.
If possible, commence this deep thinking process away from home, where your mind is less likely to be polluted by others’ expectations. In any event, if following your dismissal you plan to start a new business or a new job, then you probably won’t want to be taking holiday in the first few months, so get away from it all whilst you can now.
Perhaps you weren’t suited to your old job; perhaps you were. Either way, use this new-found, enforced thinking space to work out your goals for the long-term, medium-term and then short-term. You can’t hit a target if you don’t have one.
If your values don’t sit neatly with your work, then you are bound to hate your work; and if you hate your work, then you’re unlikely to be good at it. I see this problem not just as a solicitor specialising in workplace issues, but I also see it in my friends and family: if you don’t know your values, and if you don’t know what you want to with your time, you’re often pretty miserable at work, living for the weekend. I don’t know any successful people (and I don’t mean just in term of financial success) who hate their jobs, because it’s impossible to be good at something that you hate. I pity anyone who hates their job.
Most of us – if being honest with ourselves – know that we live according to our means. Once fired, cut your cloth accordingly.
In order to give yourself the maximum time before you find a job, or start a new business, stop spending money that you don’t now have, on things that you don’t need and cannot afford. Once you do this, you’ll realise that you can survive on significantly less than before you were fired. As Sir Francis Bacon put it:
“Prosperity discovers vice, adversity discovers virtue.”
Compile a diary of events
Whilst it is fresh in your mind, even if you are unsure as to whether you want to make a claim to an Employment Tribunal, make detailed notes of how you ended up in this situation. Write down, either on paper or, say, in a smartphone app, who said what, when, and how they said it. Additionally, keep copies of all the communication that your former employer sent to you and you sent to them. Ensure that you handwrite notes of precisely what you were told over the telephone, as contemporaneous telephone notes could be good evidence in an Employment Tribunal.
Lawyers like me, love evidence. You’re more likely to be able to secure funding for your claim, perhaps with a No Win, No Fee agreement, if you are organised with your paperwork. Like all people, lawyers want an easy life.
Search for a new job or set up a business
Once you’ve celebrated, reflected (and continue to reflect) and reduced your spending and made all of your notes, start looking for a new job, or for a new business to begin. Now could be your time to find a job you love.
Unless blessed with significant financial firepower (and it’s always prudent to have three months’ living costs squirrelled away somewhere), start looking ASAP.
And when searching and planning, keep screenshots of your internet searches, and emails, and copies of your letters, because this is best way of showing an Employment Tribunal that you did your very best to reduce your losses. If you bring an Employment claim and win, you will thank me if you have detailed records of all your efforts to find new work, because you might be awarded more compensation because you will be able to prove your losses. Additionally, to the Judge and to the lawyers, you will have credibility.
Submit your first Subject Access Request
If it is likely that you want to commence an Employment claim against your former employer, then it is often very helpful if you submit a Subject Access Request under the Data Protection Act 1998 in order to obtain all the information that your employer has about you. This is because your employer might have some really helpful information for you – really damaging information for them – that you didn’t even know existed. Often, it is only on receipt of a Subject Access Request response that someone realises that they have a solid employment claim.
To make a Subject Access Request, send an email and/or a recorded letter to your former employer. Ensure that you send the request to the right recipient. The right person to send your request will vary upon the size and nature of the employer. Some Local Authorities have dedicated departments for Subject Access Requests and Freedom of Information Requests; in other organisations you will need to write to HR or to the owner. In the letter or email ask for the following:
- Your personnel file.
- Your occupational health file.
- All emails in which you are mentioned.
- All letters in which you are mentioned.
- Any accident book entries in which you are mentioned.
- Text messages/Whatsapp messages in which you are mentioned.
Specify that you specifically want to see any emails, texts, Whatsapp messages which are on your boss’s mobile phones, as bosses tend to be more relaxed when corresponding on non-work devices.
In addition, send your employer £10 by cheque and explain that you want a full response as soon as possible and certainly within 40 days. For more information about how to make a Subject Access Request, go to https://ico.org.uk/for-the-public/personal-information/. If your former employer fails to comply with your request, then you can complain to the Information Commissioner and/or make a claim to a County Court. If you submit an Employment Tribunal claim in due course and the Information Commissioner has sanctioned your former employer for how it mishandled your Subject Access Request, then it will not look good for the employer.
Obtaining all the information from your employer might help you to understand why you were dismissed. With this information, you might have additional information in order to bring an Employment Tribunal claim for, say, unfair dismissal and/or discrimination. In addition, employers sometimes are so scared by a Subject Access Request, because of what it will reveal and the cost of complying, that they may offer you a financial package in a Settlement Agreement.
Submit a Grievance
Even though you have been fired, you can still submit a grievance. Only lodge a grievance if you have a justifiable complaint, because if you lodge a bogus grievance, then in the event that you make an Employment Tribunal claim, this bogus grievance will be no doubt be held against you. If you are to take legal action, just imagine all of your communications are printed on the frontpage of a tabloid newspaper – “The Newspaper Test”. If you wouldn’t want to see your communications on the frontpage of a newspaper, don’t send it!
The main use of a post-dismissal grievance is to show your former employer that you will be a pain to them; that you will not just quietly go away. Not only will a post-sacking grievance perhaps help you to seek justice, but it will generate further internal correspondence which you can try and obtain in due course. Often an employer will offer a Settlement Agreement with a financial package upon receipt of a grievance, particularly if you have also submitted a Subject Access Request.
If, after intense reflection, you have decided that you want your job back, or if you want to maximise your chances of your employer offering you a financial package to leave them alone, then you should submit a well-written, lengthy appeal. In addition, if you do not appeal, then in due course if you have a successful Employment Tribunal claim then certain elements of your claim might be reduced by up to 25%.
If you don’t want your job back but you do submit an appeal, then if you are awarded your job back, but then reject the job, the value of your claim is likely to plummet.
If your dedicated employment solicitor advises you that your dismissal was probably flawed, particularly procedurally flawed, and that there is likely to be a reasonably good claim, ask your employment law solicitor whether it is likely that your employer could improve their own position by undertaking a proper appeal and dismissing you in a fairer way. Therefore, sometimes, appealing could be the wrong thing to do.
Often employers will use more experienced and talented managers for dealing with appeals. In addition, if your employer hasn’t sought legal advice for your sacking, then when you appeal, then they may engage their solicitors in order to protect their position. Appealing a dismissal might feel like the right thing to do by reflex, but I encourage you to logically consider whether an appeal is likely to help your situation. Please, please take employment law advice on this key point.
Hopefully, if you do appeal, your employer will botch the appeal process: if this happens and they still uphold the dismissal, then your former employer will look even more incompetent and this should help any claim you elect to bring. Do note: your employer might choose to deal with a grievance and appeal together. This is quite common.
Remember: the time limit for commencing ACAS Early Conciliation and/or to make an Employment Tribunal claim does not stop during an appeal process. Do not fall into the trap of thinking that the time limits have stopped because of the appeal.
Check for Legal Expenses Insurance
It often comes as a surprise to my clients to learn that they have Legal Expenses Insurance on their buildings and/or contents insurance, which might cover an Employment Tribunal claim. If you have Legal Expenses Insurance cover which supports your case, then financially you might be on an equal footing with your employer when bringing a claim. Read your insurance policy schedule carefully. Insurers are good at selling Legal Expenses Insurance, but tend to do a very good job at not reminding you that you have such insurance.
If you had Legal Expenses Insurance, contact your insurers. Remember: it is not in the best interests of the insurers to grant you access to your Legal Expenses Insurance. Often insurers will use claims handlers to adjudicate on whether you have a viable claim. These claims handlers might know some basic employment law: if they are really au fait with employment law, then they are unlikely to be working as claims handlers. Therefore, be sceptical about their advice and recommendations.
Frequently insurers send potential employment cases to their panel solicitors. Please remember that just as because someone works for a solicitors practice, it does not necessarily mean that they are a solicitor! Use this link to check the person you have been allocated.
If the panel solicitors (often many miles from where you live) take the view that you have a viable claim, then they should lodge the claim for you. They will usually continue to act for you, at no – or limited – cost to you, as long as your claim has better than 50% prospects of winning, and that there is enough value in your claim.
An alternative way to secure Legal Expenses Insurance funding is to instruct a specialist employment law solicitor or direct access barrister to provide a written advice on the prospects of a successful claim. You can then provide the insurers with the written advice and demand funding for your claim. This might leave you with a small bill to pay, just to get the initial advice. I remember a time when a client instructed me to do this. I reviewed the papers and gave him a 75% chance of winning the unfair dismissal claim, because his case was so strong. As a result of my advice, my client’s Legal Expenses Insurers funded my legal fees and – just as I predicted – my client won his unfair dismissal claim.
What most insurers do not tell you is that you have Freedom of Choice. This means that, once an Employment Tribunal claim is brought, then you can move the claim to a solicitor of your choosing. This is a smart thing to do. At Truth Legal, my team could be your employment law solicitors.
Take legal advice
If you don’t have Legal Expenses Insurance, you should really seek specialist employment law advice. Solicitors, like us, offer a free review of your situation. Remember that no solicitor has a full understanding about all areas of law. Go to a solicitor who is a specialist employment law solicitor. If you asked my team about divorce, driving offences, or to prepare you a will for you, we would have to send you to another law firm. Ask any solicitor whether they have expertise in the question that you are asking of them.
Check any contractual restrictions
If you were employed in a senior role then you might have restrictive covenants inserted into your contract, often governing who you can work for and where following your dismissal. The law surrounding restrictive covenants is complex and so just because a contract contains such provisions it does not necessarily mean that the restrictions are legally binding. Take specialist legal advice on the enforceability of restrictive covenants.
Generally speaking, if the employer was in breach of contract, then the post-termination restrictions should no longer be enforceable. This doesn’t, though, mean that your former employer won’t attempt to enforce the restrictive covenants though! If you have restrictive covenants and if your former employer is litigious, then expect a fight, irrespective of whether the restrictive covenants are actually enforceable.
Commence ACAS Early Conciliation
Employment time limits for commencing a claim and/or ACAS Early Conciliation are infuriatingly short, often tripping-up a potential Claimant. It is highly advisable that you get specialist employment legal advice as to when the likely time limits expire. For example, if your employer dismissed you, then you would usually have three months less one day to commence ACAS Early Conciliation from your Effective Date of Termination to bring claims resulting from the termination of your contract. However, if, say, your employer discriminated against you two months before the dismissal, and the dismissal wasn’t for those same discriminatory reasons, then you would usually have three months less one day from the date of the discrimination to commence ACAS Early Conciliation i.e. this is a different date!
It might be prudent to commence Early Conciliation earlier than you would to, just in case you don’t miss a time limit. I would suggest that you keep Early Conciliation going for as long as possible. I also strongly encourage you to engage a capable employment law solicitor for this phase. In my experience, a claimant who attempts to settle a claim during the Early Conciliation period is likely to be taken much more seriously if they have already instructed a solicitor who knows what they are doing. Like dentistry, employment law is complex. Now you wouldn’t attempt to take your own tooth out, would you, so why would you try and settle your own employment claim?
Commence an employment claim
Assuming that you were unable to resolve your claim during ACAS Early Conciliation, and assuming that you have been advised that you have a reasonable claim, then issue your claim in good time. (Again, the time limits are very tight, so be quick and cautious). Example employment claims can be located in our Legal Library here: https://www.truthlegal.com/legal-library/
Submit a second Subject Access Request
Like I advised in point six above, now that more information about you has been generated by your former employer, you may wish to make a second Subject Access Request, to include all the information that you haven’t received. The law regarding the interaction between normal disclosure/discovery of documents in the Employment Tribunals and County Courts and Subject Access Requests is complex and often changing. I cannot set out the full picture here, suffice to say that you don’t want to appear awkward, nor do you want to miss out on receiving any smoking guns.
By now, I hope that you are feeling happier than when you started the article. I also hope that you understand the landscape that you now find yourself within. Adapt to this new environment and you will be just fine.
Help! I’ve Been Fired – 14 Things You Should Do Next Infographic
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