Navya Shekhar speaks about this unfair dismissal claim…
Can I claim for unfair dismissal?
The first step to any unfair dismissal claim is establishing whether you meet the eligibility requirements. The right not to be unfairly dismissed is only available to people who meet these requirements.
To be eligible, you must have been:
- An employee (not a worker or an independent contractor)
- Employed continuously for more than 2 years
Let’s take a more detailed look at each of these in turn:
You were an employee
In everyday language, an employee often just means someone who works for someone else. But the legal definition of the word is a lot stricter.
Many employment law rights are tied to your employment status. This table gives an idea of how these rights breakdown in relation to employees, workers and self-employed contractors:
|Statutory Sick Pay||✔||✖||✖|
|Statutory maternity, paternity, adoption and shared parental leave and pay||✔||Workers receive pay only – not leave||✖|
|Minimum notice periods||✔||✖||✖|
|Unfair dismissal protection||✔||✖||✖|
|Right to request flexible working||✔||✖||✖|
|Time off for emergencies||✔||✖||✖|
|Statutory redundancy pay||✔||✖||✖|
|National Minimum Wage||✔||✔||✖|
|Protection from unlawful deduction from wages||✔||✔||✖|
|Working time protections||✔||✔||✖|
|Protection from unlawful discrimination||✔||✔||Some contractors may receive protection|
|If working part-time, protection from discrimination on that basis||✔||✔||✖|
|Protection for whistleblowing||✔||✔||Some contractors may receive protection|
It is your actual employment relationship which determines your employment status – not what others, or you, might believe. Even if your former ‘employer’ believes you are not an employee, it does not necessarily mean they are correct! If in doubt, get advice.
Where your employment status is in dispute, it will be for an Employment Tribunal to decide whether you were in fact an employee or not. The Employment Tribunal will delve into the actual details of the relationship between you and your ‘employer’, and will make a decision on the facts.
As an example of this kind of dispute, the recent controversy involving Uber, the taxi company, centred on whether its drivers worked for the company or were self-employed. Although Uber argued their drivers were self-employed, the Employment Tribunal decided otherwise.
Read our blog post: What are my rights? Employment Status and the Gig Economy for more information on this topic.
So how do you know whether you are an employee or not?
Employees are legally defined as someone who has entered into, or works under, a contract of employment.
Most contracts of employment will be in writing, and you will have signed a copy when you started working for your employer. However, the law also recognises implied contracts of employment – i.e. contracts that have not been written down but can be ‘assumed’ to exist by the nature of the working relationship between you and your employer.
This can be confusing, but some of the main indications that you are an employee include:
- A written contract of employment.
- An employee handbook.
- Paying PAYE tax.
- Not responsible for your own tax returns etc
- Having a work-based pension plan.
Definition of employee:
The legal definition of an employee is contained in the Employment Rights Act 1996 (at s.230).
If you are in any doubt, over your employment status, contact us to discuss your circumstances.
You were employed for over 2 years
In most cases, protection from being unfairly sacked or fired only begins when you have been employed for 2 or more years continuously.
The word ‘continuously’ is significant. Some interruptions in your employment may prevent you from meeting the 2-year continuous employment requirement.
The provisions for working out what is continuous employment are complicated, but in general terms:
- Your employment is presumed to be continuous unless your employer can show otherwise.
This minimum period of continuous employment can be a major obstacle to unfair dismissal claims. An unscrupulous employer might fire their employee before the necessary length of service has been reached, deliberately to avoid a potential unfair dismissal claim.
However, if you have not been continuously employed for the minimum period, there are situations where you may still be able to make an unfair dismissal claim. These are where:
- You were dismissed for a reason connected with a “protected characteristic” i.e. you were discriminated against on the grounds of:
- Sexual orientation
- Gender reassignment
- Marital status
- Pregnancy and maternity
- Religion or belief
- You were dismissed because of union membership or activities.
- You were dismissed for being a member of the reserve armed forces.
- An exception specified in the Employment Rights Act 1996 applies. There are a number of specified exceptions. Some of the most significant ones are listed below. In general terms, they protect employees in dismissals which relate to:
- Jury service
- Leave for family reasons
- Health and safety matters
- Working time cases (where there have been breaches of the Working Time Regulations 1998)
- Making a protected disclosure (also known as whistleblowing)
- Asserting certain statutory rights (for example, the right to a minimum wage)
- Flexible working
You were dismissed
To claim unfair dismissal, you must have been dismissed by your employer. This may sound obvious, especially if dismissal is given its everyday meaning – i.e. that you were sacked or fired from your job. However, in most situations, you cannot claim unfair dismissal if you resigned or decided to leave your job yourself.
There are some important exceptions to this. For example:
- If you were pressured into leaving, such as in situations where you were told to ‘resign or be dismissed’, your departure may still be considered a dismissal; or
- If you can successfully prove there was a ‘constructive dismissal’ – see ‘Different dismissals: Unfair dismissal, constructive dismissal, and wrongful dismissal’
A dismissal can include other, less obvious ways for your employment contract to end. For example, if you worked under a fixed-term contract and it was not renewed at the end of the term, this can constitute a dismissal.
All employment contracts include notice periods, either stated in the employment contract or inserted by law. Usually these mean that if either you or your employer wish to end your employment, a period of time must elapse (from the date when notice was given) before the contract will actually end. Whether notice is given or not makes no difference to whether the end of your contract counts as a dismissal or not, but it may have significance in other ways – see ‘wrongful dismissal’ under ‘Different dismissals: Unfair dismissal, constructive dismissal, and wrongful dismissal’, below.
When is a dismissal unfair?
If you meet the eligibility requirements, you will have the right not to be dismissed unfairly. This means your employer must be able to justify their decision to dismiss you as fair – otherwise it will be an unfair dismissal.
Determining what is fair can be a difficult issue. The Employment Tribunal will take several steps to resolve the matter. Although not every case will go before a tribunal, the approach should be used to assess the strength of your case.
Here are the steps you need to consider…
Now lets discuss each step in a little more detail…
STEP 1 – What was the reason (or the main reason) behind your dismissal?
Your employer must provide their reason, or main reason, for your dismissal when defending against an unfair dismissal claim.
In addition, your employer is legally obliged to provide you with a written statement of why you have been dismissed, if you meet certain conditions. This can be used as evidence in any unfair dismissal claim.
These conditions are:
- You must have been continuously employed for a period of 2 years or more (in a similar way to the eligibility requirement for the right not to be unfairly dismissed)
- You must request this statement from your employer
Your employer’s written statement must be provided within 14 days of your request and must show their reason for dismissing you. If they provide more than one reason, they must also indicate which the main reason is.
If your employer gives false or inaccurate reasons, the Employment Tribunal is free to determine the actual reasons for your dismissal and judge whether it was fair based upon those.
STEP 2 – Is the reason automatically unfair?
There are a number of reasons for a dismissal which your employer will be unable to justify. This means if one of these reasons is the basis for your dismissal, it will be automatically unfair. The automatically unfair grounds for dismissal are:
- Discrimination – This could be based upon any of the protected characteristics of age, race, disability, sex, gender reassignment, sexual orientation, marriage/civil partnership, pregnancy/maternity, and religion or belief.
- Pregnancy and childbirth – If you are fired whilst pregnant or because of reasons related to childbirth this can be automatically unfair. It may also constitute discrimination. However, it may not be automatically unfair if the organisation in which you worked contained 5 or fewer employees.
- Assertion of specific statutory employment rights – This includes a long list of statutory rights provided by the Employment Rights Act 1996. Some of the more common examples are the rights to:
- Return to work after pregnancy
- Redundancy payments
- Written particulars of employment
- Suspension from work on medical grounds
- Reclaim unauthorised deductions from wages
- Around a transfer of undertaking – a transfer of undertaking is where a business is transferred from one employer to another. See: TUPE claims.
- Trade union membership/activities.
- Participation in certain types of strike action.
- For having spent offences.
If the reason is automatically unfair, then there is no need to go through the other steps to determine fairness.
STEP 3 – Is there a potentially fair reason?
Provided their reason is not automatically unfair, it will be for your employer to show that it was fair. Legally, there are several categories of reason which are ‘potentially’ fair. Your employer will have to state which of these categories their reason falls into. The categories are:
- Capability and qualifications
- Redundancy – if your position is no longer required.
- Illegality – if remaining in your position would lead to the contravention of some legal provision, either on your part or on the part of your employer.
- Some other ‘substantial reason’ – this is something of a ‘catch-all’ category which an employer can use if they believe they had a fair reason to dismiss you but which does not fall into any of the other categories.
STEP 4 – Is the reason actually fair in the circumstances?
Even if your employer’s reason falls into one of the potentially fair categories, it does not mean your dismissal was fair.
In determining whether your dismissal was fair or unfair, the Employment Tribunal will consider:
- Whether your employer acted reasonably in treating the reason as a sufficient for dismissing you. This will include considering your employer’s circumstances such as the size and resources of their organisation.
- The substantial merits of the case and decide matters in accordance with legal principles of fairness.
The Employment Tribunal will determine this question not by asking what they would have done in your employer’s shoes but by asking what would a range of reasonable employers have done. If your employer’s actions are considered to fall within that range of reasonable responses, your dismissal will not be unfair.
Dismissal procedures and unfairness
If your employer has not followed the correct procedure when dismissing you, it does not necessarily mean your dismissal was unfair. However, your employer must show that, if they had followed the correct procedure, they would still have dismissed you – and that their reason is fair.
An exception to this would be where an unfair procedure is followed. In these circumstances, this may constitute an unfair dismissal even if your dismissal itself was for a fair reason.
How do I make an unfair dismissal claim and what will happen?
Before any steps are taken in an unfair dismissal claim, it is strongly recommended that you seek legal advice from a specialist employment solicitor. They can help you to consider the strength of your case and advise you on your prospects of success. If your claim is very unlikely to succeed it is best to be aware of this as early in the process as possible.
Although seeking legal advice should be seen as crucial step, you do not have to instruct that solicitor, or any other, to actually represent you in your case. There is no legal requirement to have a lawyer acting on your behalf in an unfair dismissal claim.
Nonetheless, employment law can be highly complicated and you may feel more confident in the chances of success in your unfair dismissal claim if you can rely on professional expertise.
The first step to beginning your claim is to lodge your case with an organisation called ACAS. You are legally required to do this as you are unable to begin your claim through the Employment Tribunal without a ‘certificate’ from ACAS to confirm that they were notified. However, it may be possible to resolve your unfair dismissal claim without going through the Employment Tribunal at all. This is through the ACAS ‘Early Conciliation’ process.
ACAS and Early Conciliation
ACAS stands for Arbitration, Conciliation, and Advisory Service. They are an independent body who aim to help employees and employers resolve workplace disputes. They provide advice and training as well as the conciliation service. More information on ACAS can be found on their website.
The idea behind Early Conciliation is to help you and your employer resolve your claim before involving the Employment Tribunal. It involves trying to reach a mutually acceptable outcome, with ACAS acting as a ‘go-between’. Any agreements that are reached will take the form of legally binding contracts.
If you agree, ACAS will contact your employer to see if they are also willing to engage in the process. If either party – you or your employer – does not agree to engage with Early Conciliation, or an outcome cannot be negotiated, ACAS will issue their certificate and you may proceed to lodge your claim with the Employment Tribunal. ACAS must issue a Certificate at the end of the Early Conciliation period, if the matter is not resolved.
The Employment Tribunal
Once you have a Certificate from ACAS, you can start your claim with the Employment Tribunal by submitting a form called an ET1. This can be done online or through the post. The form is available from the government’s website. Free example ET1s can be found in our site here.
The ET1 form also requires you to provide details of your unfair dismissal claim, such as the events and facts you are relying upon. These details are often submitted in a separate document to accompany the ET1 called the ‘Grounds of Claim’. Our legal library contains several examples of Grounds of Claim for unfair dismissal claims.
Once the Employment Tribunal receives your information, your employer will be contacted and asked to provide their formal response in a form called an ET3.
The Employment Tribunal will then manage the case to set dates for the exchange of evidence, such as witness statements for example, and also to schedule a hearing. If the Claim is not settled or withdrawn, then a hearing will take place. The hearing will involve the Employment Tribunal listening to the arguments of both sides and making their judgment.
It is important to be aware that claims can be settled between the parties (you and your employer) at any point up to the hearing. Just because the Employment Tribunal is involved it does not mean that your case will definitely proceed to a hearing. Also, ACAS conciliation is still available throughout the process provided you and your employer agree to it.
If your case does proceed to a hearing, it will usually be heard by a judge sitting alone. However, if your case is more complicated such as if discrimination is alleged, a panel of three may be present to consider your claim.
Once a judgement has been given it will often represent the final resolution of your case. However, decisions can be appealed or reconsidered in very limited circumstances. The grounds for an appeal can only be if the Employment Tribunal misapplied or misunderstood the law. Your appeal is unlikely to be successful just because the tribunal did not decide things your way. Appeals will be heard by the Employment Appeal Tribunal, if it passes the sift.
It is possible for the Employment Tribunal’s decision can be reviewed again by the Employment Tribunal in certain situations. This are very limited as well, usually when new evidence has come to light. It is rare for a decision to be changed, however.
Judgments made by the Employment Tribunal and the Employment Appeal Tribunal are public record. You can find reports of cases which have already been decided here:
If you would like to know more about happens in an unfair dismissal claim, listen to our podcast on the Employment Tribunal process with employment law barrister, Kevin McNerney.
How long do I have to claim for unfair dismissal?
You must notify ACAS of your intention to make an unfair dismissal claim within 3 months, less one day, from the ‘effective date of termination’ of your employment, thereby triggering ACAS Early Conciliation.
There is also a time limit to submitting your claim to the Employment Tribunal. This is 3 months from your effective date of termination. However, if you are going through ACAS Early Conciliation, this deadline is suspended. It will begin running again if the Early Conciliation process fails. The time periods are particularly complex and require specific legal advice. In general terms, if in doubt, trigger ACAS Early Conciliation as soon as possible and, once you have an ACAS Certificate, if in doubt, submit your ET1 quickly.
These are very tight deadlines. The deadline for submitting your claim to the Employment Tribunal can be extended if the Employment Tribunal considers it reasonable to do so, but there must be a good reason to justify this. It is unusual for an Employment Tribunal to extend the period.
The effective date of termination
Determining this date is crucial to calculating the time limit to making your claim. As the name suggests, it will be generally the date upon which the end of your employment takes effect.
If you were dismissed with a notice from your employer. The date upon when this period expires will usually be the effective date of termination.
For example, Ryan is sacked from his job and is given written notice on 1st June. His contract specifies that his notice period is 2 months. His line manager tells him not to bother coming in to work through his notice period. Even so, Ryan’s effective date of termination would be 1st August (i.e. 2 months from receiving his notice).
For a dismissal where you were not given notice, such as an immediate or ‘summary’ dismissal, your effective date of termination will be the date on which you were dismissed.
How long does an unfair dismissal claim take?
Not all unfair dismissal claims will be concluded in the same way. Some may be resolved through negotiation during Early Conciliation; others may go all the way to a hearing of the Employment Tribunal. The majority settle at some point in between. This makes it very difficult to give an accurate indication of how long an unfair dismissal claim will take.
Our Solicitor’s Advice:
Navya says: “Timescales are tricky to pin down at the outset of an unfair dismissal case. So many things can affect it – many of which you and your solicitors will have no control over, like how complicated your case is, how co-operative your employer is, and how quickly matters are dealt with on their side. Even so, I like to be able to give my clients some idea of timescales. I would say, in my experience, claims usually take around 6 to 8 months on average, though I have seen cases resolved in as little as 2 weeks, or take as long as 2 years.
“Once you have got some way into your claim, your solicitor may be able to give you a clearer indication of how long it is likely to go on for.”
Different dismissals: Unfair dismissal, constructive dismissal, and wrongful dismissal
You may hear these terms in connection with an unfair dismissal claim. Both constructive dismissal and wrongful dismissal may occur in the same circumstances as an unfair dismissal but it is important to know where they differ and what they mean.
Constructive dismissal is where the conduct of your employer is such that you are forced to resign. In legal terms, your employer’s conduct must be sufficient to indicate they have effectively ‘rejected’ the contract of employment between you. Although your resignation has actually ended your employment contract, if constructive dismissal is established, legally your employer will be treated as having dismissed you.
Because you must have been dismissed to be able to claim for unfair dismissal, claiming for a constructive dismissal is a way to meet this requirement.
You will have to establish that you were the victim of a constructive dismissal in addition to establishing that your dismissal was unfair. It effectively adds a further step to the unfair dismissal process described above. However, even if you succeed in proving a constructive dismissal, it does not automatically make your dismissal unfair.
A claim for wrongful dismissal is one which is entirely separate from unfair dismissal. However, your circumstances may mean you are able to make a claim for both. If so, the claims would be independent of each other, and each judged on its own merits.
A wrongful dismissal is one in which your employer has broken the provisions of your employment contract as to how that contract can be ended. Many contracts will contain rules to cover a notice period. These mean that when either party wishes to end the contract, they must give notice to the other party. Only after the notice period has elapsed will the actual termination of the contract take effect.
If you are dismissed by your employer and they have broken the rules contained in your contract – for example by failing to give, or giving insufficient, notice of the termination of your contract – you may be able to claim for wrongful dismissal.
To be able to claim for wrongful dismissal, your employer must not have grounds to justify dismissing you summarily.
Summary dismissal (dismissal without notice) is lawful if your conduct was such to show that you disregarded the essential conditions of your contract of employment.
For example, Samantha accidentally knocks over a filing cabinet and it lands on her colleague’s foot. Her colleague accuses Samantha of doing it deliberately. Their manager fires Samantha immediately, even though her employment contract states that she must be given notice. If Samantha’s employer cannot justify her summary dismissal as lawful, she will have a claim for wrongful dismissal alongside any other claims she may have.
What will I be awarded for a successful unfair dismissal claim?
The possible remedies to make right your unfair dismissal are:
The Employment Tribunal must consider each of these possible awards in turn. In reality, it is rare for reinstatement or re-engagement to be awarded, but they must be considered first if you have been found to have been unfairly dismissed. Your wishes, and the practicalities of such arrangements, will be taken into account in these considerations.
If this is ordered by the Employment Tribunal, it means you will be treated as though you had never been dismissed. The Employment Tribunal may also award:
- Financial sums in respect of the benefits you have lost during the period of your dismissal, such as pay arrears, for example.
- Other rights and privileges, such as pension rights, to restore to you.
This will involve being re-employed by your employer, or by another employer associated with them, in a position which is similar to the one from which you were dismissed. All of the details should be specified in the Employment Tribunal’s order and additional awards, similar to those which could be awarded for reinstatement, may also be specified.
For unfair dismissal, compensation is split into two kinds of ‘award’:
- The Basic Award
This is linked to your salary and the length of your service. Usually a week’s pay is used (although this can vary between half a week and one and a half week’s pay) and applied for each year of continuous employment to a maximum of 20 years. There are certain set minimum awards depending on the reason for which you were unfairly dismissed.
- Compensatory Award
The Employment Tribunal has much more discretion with the compensatory award. It will be for them to decide a figure that it considers to be fair and just. The Employment Tribunal will also examine what other losses you have incurred from your unfair dismissal under this award. An example schedule of loss for an unfair dismissal claim can be found in our legal library. The compensatory award is capped at one year’s pay or a maximum of £83,682.
The two compensation awards are considered separately and then appropriate amounts will be awarded under each. The Employment Tribunal does not choose between the two, although the amounts awarded under each will vary. This approach helps to make the compensation being awarded as transparent as possible.
According to government statistics, the average compensation award for unfair dismissal cases in 2016/17 was £16,543.
Maximum limits to compensation apply to many of the different grounds for an unfair dismissal claim. However, some types of unfair dismissal claim, such as those involving whistleblowing, have no limits to the amounts of compensation which may be awarded. The highest award in 2016/17 was a huge £1.7 million.
Can my compensation be reduced?
The basic and compensatory awards can both be reduced if the Employment Tribunal considers it fair and just to do so. As the compensatory award is based upon the Employment Tribunal’s discretion, though capped, it can be reduced if the tribunal considers that your conduct contributed to the dismissal.
Also, any money that you have already received in respect of your dismissal, such as redundancy pay or a similar payment, will be taken into account to reduce the amount of compensation you may receive.
Can I make a ‘No Win, No Fee’ unfair dismissal claim?
Truth Legal always tries to conduct unfair dismissal claims under a ‘No Win, No Fee’ Agreement or under our client’s Legal Expenses Insurance at no (or very little) cost to our clients. We understand how helpful No Win, No Fee agreements can be for funding a claim during a time when your financial situation may be uncertain. It is though usually best for our clients if their claim is funded by way of Legal Expenses Insurance.
‘No Win, No Fee’ Agreements mean that, if we do not succeed in recovering compensation for you, you will not have to pay our fees, except in very rare circumstances.
We are more than willing to discuss how funding an unfair dismissal claim would work. Just contact us if you would like to know more. If we cannot offer a No Win, No Fee agreement or if you do not have the benefit of Legal Expenses Insurance, then we offer low hourly rates or fixed fees.
Why should I use Truth Legal to make my unfair dismissal claim?
Unfair dismissal claims can be lost and won on the skill with which they are handled. Trust is also very important. Without it, you won’t know whether to rely on the advice you receive, and you won’t feel like your legal advisers have your best interests at heart. This makes choosing your legal representatives one of the most important decisions you will face at the outset of your claim.
Truth Legal’s specialist employment law solicitors have extensive experience of securing compensation for employees who have been unfairly dismissed. We pride ourselves on providing an ethical, honest service to all of our clients.
We are based in Harrogate with presences in York, Manchester, and London. We would like to sit down with you for a free, no-obligation consultation and to discuss any ways in which we can help you. Alternatively, we can speak with you over the telephone. Contact us now to begin your claim.
Switching your ongoing unfair dismissal claim to Truth Legal
It is always your choice over who should represent you in an unfair dismissal claim. Even if your case has been assigned to a law firm through your trade union, or by another organisation such as your insurers, you are entitled to instruct any solicitors you wish to deal with your claim. This also includes changing solicitors in an ongoing unfair dismissal claim.
There are many reasons why a change of solicitors may be beneficial. Conduct of your case may be in the hands of an unqualified or inexperienced paralegal, and you want it to be dealt with by a specialist solicitor. Perhaps trust has broken down between you and your legal representatives and/or their service is poor? Switching your solicitors to Truth Legal allows you to take control of your case and ensure it is conducted with skill, professionalism, and expertise.
Contact Truth Legal
You don’t have much time to start an unfair dismissal claim. If you have any doubts about making a claim, or you would like to discuss things further with our friendly, knowledgeable solicitors, we offer 15 minutes free employment advice – call us today on 01423 788538 or click here to contact us.
Let us help you to claim the compensation you deserve.