**This article was updated in November 2018**
Being fired or sacked can feel like the end of the world; an overwhelming mix of helplessness, fear, and injustice at how you’ve been treated.
But there are other ways of looking at it. In my experience, as a solicitor who specialises in workplace issues, getting sacked could be the best day of your life!
It may not seem like it at the moment, but, 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.”
If your organisation was wrong to terminate your employment – if they made a mistake or did not appreciate the work you did for them – then they are fools, and would you really want to keep working for such people? Alternatively, if, in your heart of hearts, your employer was right to fire you, then you have the chance to start afresh – the chance to learn and move on.
Either way, you have been granted an opportunity. Whilst you might be going through a dreadful time at the moment, if you are able to make the most of the opportunity, you will almost certainly see your dismissal as a positive change in the long-term. Providing you have a roof over your head and food on your table, all is not lost.
So, the first thing you should do after being fired – as hard as it may sound – is celebrate the positive side of your situation.
The second thing you should do after you’ve 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?
An old adage says : “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 used the full extent of their talents.
So, once you have got over the immediate anxiety of being fired, use this 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 consider the fundamental questions of our life are rare. At the moment, you’re free: untethered from 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. 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.
Your personal values are extremely important when making your plans. If your values don’t sit neatly with your work, then you are bound to hate your job; and if you hate your job, you’re unlikely to be good at it. I see this problem everywhere – in my friends and family, not just as a solicitor specialising in workplace issues. If you don’t know your values, and if you don’t know what you want to do 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.
3. Reduce spending
Most of us – if being honest with ourselves – know what we have to do to live within our means. If you’ve just been sacked, you must cut your cloth accordingly.
In order to give yourself the maximum time before you find a job, or start a new business, you must now stop spending money you no longer have. One of the stresses of being fired is that you now have to be stricter on yourself, ruthlessly identifying those things you don’t need and those you cannot afford. Once you do this, you’ll realise that you can survive on significantly less than before you were fired. To paraphrase Sir Francis Bacon:
“Prosperity discovers vice, adversity discovers virtue.”
4. 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, write 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 communications that your former employer sent to you and that 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!
5. Search for a new job or set up a business
Now that you’ve celebrated, reflected (which you should continue to do), reduced your spending and made all of your notes, you can start looking for a new job, or start considering a new business to set up. 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.
When searching and planning, take screenshots of your internet searches and emails, and keep copies of any letters you send. This is the best way of showing an Employment Tribunal that you have done your very best to reduce your losses following your dismissal. If you bring a claim for unfair dismissal or wrongful dismissal and win, you will be in a much better position if you have detailed records of all your efforts to find new work.
The reason behind this is, when you make a claim, you are expected to do all you reasonably can to reduce the amount of money you have lost. Showing that you have tried your best to start earning again helps to meet this requirement. It may also mean you are awarded more in compensation than if you had been unable to prove this. Additionally, it serves to give your claim more credibility with the judge and lawyers involved.
6. Submit your first Subject Access Request
A Subject Access Request, under the Data Protection Act 1998, can be very useful if there is any possibility that you will bring an employment law claim against your former employer. The Request compels your employer to provide you with the information they have about you – information, perhaps, which you never knew existed. Such information can be helpful in supporting a claim directly or by damaging your employer’s efforts to defend a claim. Often, it is only on receipt of a Subject Access Request response that someone realises they have a solid employment claim.
You can make a Subject Access Request by sending an email, and/or a letter by recorded delivery, to your former employer. However, you must ensure that you send the request to the right recipient, and this will vary based upon the size and nature of your former 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 the HR Department 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.
Ensure that you specifically ask 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.
Since May 2018 you no longer to pay £10 for the information. Explain that you want a reply as soon as possible, and certainly within 40 days. More information about how to make a Subject Access Request can be found on the Information Commissioner’s Office website . 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 criticised your former employer for a mishandled Subject Access Request, it will reflect badly on your former employer.
Obtaining all the information from your former employer might help you to understand why you were dismissed. With this information, you might find you have grounds to bring an Employment Tribunal claim for, say, unfair dismissal and/or discrimination. In addition, employers are sometimes terrified by Subject Access Requests, fearing what they will reveal and the cost of compliance. This can lead them to offer you a financial package in a Settlement Agreement.
7. Submit a Grievance
Even though you have been sacked, you can still submit a grievance through your employer’s internal procedures.
The main advantage of this 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-dismissal 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.
However, you should only lodge a grievance if you have a justifiable complaint. Lodging a bogus grievance can be more damaging to any potential Employment Tribunal claims than submitting no complaint. A bogus grievance will be undoubtedly held against you in a later claim, and used to undermine your credibility.
If you have any intention of taking legal action in future, consider ‘The Newspaper Test’. Imagine all of your communications are printed on the front page of a tabloid newspaper. If you would be ashamed to see something there, don’t send it!
8. Consider whether to appeal your employer’s decision
If, after intense reflection, you have decided that you want your job back, or you wish to maximise the chances of your employer offering a financial package to leave them alone, you should consider submitting a well-written, lengthy appeal.
Deciding whether to make an appeal can be tricky; sometimes it can be the wrong thing to do. On the one hand, if you do not appeal and go on to make a successful Employment Tribunal claim, certain elements of your claim might be reduced by up to 25%.
On the other hand, submitting an appeal can cause problems if you do not want your old job back. Where an appeal has been made, there is always the possibility that an Employment Tribunal might award you your job back as your compensation. You would be free to turn this down, but the value of your claim is likely to plummet.
Furthermore, it is possible that your employer could improve their position through an appeal. If your original dismissal was flawed, particularly in terms of the procedure that was followed, your employer might use the appeal process to handle the matter more appropriately and dismiss you in a fairer way. Often employers will use more talented and experienced managers for dealing with appeals.
Finally, your employer may also take the opportunity of an appeal to instruct solicitors of their own to protect their position, something which they may not have done up to this point. Again, this can serve to strengthen your employer’s hand in resisting any claims you go on to make.
So should you submit an appeal or not?
A lot will depend upon the circumstances of your case, so it is crucial that you seek the advice of a specialist employment law solicitor before you make the decision. Appealing a dismissal might instinctively feel like the right thing to do, 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 former employer will botch the appeal process. If this happens, and your former employer still upholds the dismissal, then they will look even more incompetent, helping to place you on a better footing for any claim you later elect to bring. Where you have also lodged a grievance, your employer might choose to deal with the grievance and appeal together. This is quite common.
Remember: the time limit for commencing ACAS Early Conciliation, and/or making 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 you have submitted an appeal.
9. Check for Legal Expenses Insurance
It often comes as a surprise to my clients when they learn that they have Legal Expenses Insurance, which might cover an Employment Tribunal claim. Typically, this cover is part of their buildings and/or contents insurance. If you have Legal Expenses Insurance cover which supports your case, then it can serve to place you on an equal footing financially 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 an even better job of failing to remind you that you have it.
If you have Legal Expenses Insurance, contact your insurers. Be prepared for some resistance on their part as it is not in their best interests 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, but they will not have specialist knowledge. Therefore, be sceptical about their advice and recommendations.
Frequently, insurers send potential employment cases to their panel solicitors, who could be many miles away from where you live. Another note of caution: just because someone works for a solicitors’ practice, it does not necessarily mean that they are a solicitor! Use this link to check the case-handler to whom you have been allocated.
If the panel solicitors 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 if 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 for 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 will not tell you is that you have the freedom to choose your own solicitors. This means that, once an Employment Tribunal claim is brought, you can transfer your claim to a solicitor of your choosing. Switching solicitors in this way gives you control of who will represent and advise you, and naturally you will want this to be a firm of specialist employment law solicitors you feel able to trust. At Truth Legal, we would be more than happy to discuss taking over conduct of your claim.
10. Take legal advice
If you don’t have Legal Expenses Insurance, you should really seek specialist employment law advice. Solicitors, like us, are more than willing to discuss your situation and advise you on your case . Remember that no solicitor has a full understanding about all areas of law. Make sure that you instruct a solicitor who has expertise in employment law. If you asked my team about divorce, driving offences, or to prepare a will for you, we would have to send you to another law firm. Ask any solicitor whom you intend to instruct whether they specialise in the area of law that you need.
11. Check any contractual restrictions
If you were employed in a senior role then you might have restrictive covenants inserted into your contract. Restrictive covenants are clauses which often govern 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 they are legally binding. Take specialist legal advice on the enforceability of restrictive covenants.
Generally speaking, if your former employer was in breach of the employment contract, the post-termination restrictions should no longer be enforceable. This doesn’t mean that your former employer won’t try to enforce the restrictive covenants though! Litigious former employers will almost certainly try to enforce restrictive covenants, irrespective of whether those covenants are actually enforceable.
12. 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 any time limits are likely to expire.
Working out the time limits yourself can be difficult. For example, if your employer dismissed you, then you would usually have three months less one day to commence ACAS Early Conciliation, starting from the day when your dismissal took effect. However, if, say, your employer discriminated against you two months before your dismissal, and the dismissal wasn’t for those same discriminatory reasons, then, for a discrimination claim, the ACAS Early Conciliation time limit would begin from the date of the discrimination. Again, you would have three months less one day, but it would run from a different date and therefore end on a different date!
It is often prudent to commence Early Conciliation sooner than is strictly necessary, to ensure you don’t miss a crucial 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 competent solicitor.
Like dentistry, employment law is complex and can be very painful if it is not done correctly! In the same way that you wouldn’t attempt to take out your own tooth, settling your employment claim is best handled by an experienced professional.
13. Commence an employment claim
If you have been unable to resolve your claim during ACAS Early Conciliation, and you have been advised that you have reasonable prospects of success, then it’s likely your best course of action is to begin a claim through the Employment Tribunal. Again, there are tight deadlines with Employment Tribunal claims, so you should act quickly and be mindful. Examples of the forms used to commence an Employment Tribunal claim can be found in Truth Legal’s free Legal Library.
14. Submit a second Subject Access Request
As I advised above, you may wish to make a second Subject Access Request now that more information about you has been generated by your former employer. This can then include all the information that you haven’t received.
During the normal course of employment law claims, and other civil claims, the parties involved have to disclose certain kinds of information to each other. How Subject Access Requests interact with these disclosure rules can be complicated, and often changes. I cannot set out the full picture here, but you should be aware that your conduct as a claimant must be balanced between obtaining all information which may be useful to you and behaviour which the tribunal may perceive as aggressive or unreasonable.
I hope that you are feeling happier than when you started the article! You may be in unknown territory at the moment but hopefully you now understand its landscape a little better. Adapt to this new environment and you will be just fine.
If you would like any specialist advice on your situation, Truth Legal is here to help you. Please do not hesitate to contact us for advice about your own unique circumstances.
Help! I’ve Been Fired – 14 Things You Should Do Next Infographic
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