What can employers do with an unfair dismissal claim

What is wrongful dismissal?

Not to be confused with unfair dismissal, wrongful dismissal is when an employer breaches an employee’s employment contract. In most cases, it’s because an employer fails to give the employee notice or notice pay.

Wrongful dismissal could include:

• Dismissing an employee without providing a notice period or notice pay.
• Not giving an employee the complete notice period, they’re entitled to.

An employee can claim wrongful dismissal regardless of the length of service.

What are constructive dismissals?

Constructive dismissal is when an employee resigns because they believe their employer has breached their employment contract.

These are some of the reasons an employee can state a constructive unfair dismissal claim:

• Not being regularly paid the right amount without a fair reason.
• Being bullied or discriminated against in the workplace.
• When an employee raises a grievance and the employer doesn’t investigate it.
• When an employer makes unfair alterations to an employee’s work patterns or changes an employee’s place of work without prior agreement.

Constructive dismissal could be one serious incident or multiple smaller ones.

Who can claim unfair dismissal?

The qualifying period for employees to claim unfair dismissal is two years of continuous service within a business.
Employees can only make a claim after this qualifying period and if they work under a contract of employment with their employer.

Some staff members cannot make a claim as they aren’t classed as an employee. These include:

• Someone who is self-employed.
• A person who is an agency worker.
• A person who is working overseas or someone who works for a foreign government. In these cases, they could be an employee but the tribunal may not have jurisdiction to hear the claim if they are overseas.

What is an automatic unfair dismissal claim?

There are some circumstances that are automatically unfair if an employer dismisses an employee for these specific reasons only.

These are seen as automatically unfair dismissals:

• Employees wanting to take family leave. Such as parental, paternity or adoption leave.
• Submitting a flexible working request.
• An employee that’s part of a trade union or a union representative.
• Going on strike. It must be a legal official industrial action that is 12 weeks or less.
• Acting on or planning to take action on health and safety issues within the workplace.
• Requesting for a legal right, such as being paid the National Minimum Wage.
• Participating in jury service.
• Whistleblowing.
• Compulsory retirement. When an employee is forced to retire.

If any of these automatically unfair dismissals are taken against an employee, then the two years of service do not apply. An employee can claim unfair dismissal regardless of how long they have worked for you. This could then go to an employment tribunal.

The two most tricky automatic unfair dismissals include industrial action dismissals or because of health and safety issues.

What reasons are there to be unfairly dismissed?

As an employer, it can be difficult to determine when dismissals are legally unfair. You do not want an employee claiming against you.

If an employee feels that they were unfairly dismissed they could decide to bring an unfair dismissal case. This could lead to a costly employment tribunal.

Fair reasons for dismissals

To dismiss an employee a fair process must be followed. An employer can do this by following disciplinary and grievance procedures.

Fair reasons would include the employee behaving inappropriately or in an unacceptable way. Known as misconduct.

Another fair reason could be related to the employee’s performance. Known as capability.

If the dismissal is because of another reason, it’s best to get in contact with an HR and employment law professional. They will inform you of the right code of practice and how to follow a fair procedure.

What are the five fair reasons to dismiss an employee?

There are five potentially fair reasons an employer could take to dismiss an employee.

These include:

• Capability – the employee is incapable of doing their job. This could be because they have inadequate performance.
• Misconduct – the employee behaves badly. This could be because they are persistently late or have multiple unauthorised absences.
• Legal reasons – you can’t legally keep the employee on. For example, an employee has lost their driving licence when this is required for their job.
• Redundancy – the job role has become redundant.
• Some other substantial reason – this isn’t set out in the law.

It means that as the employer you must show a good reason for dismissing the employee. For example, if their contract was for maternity cover and that contract has now finished.

Contact us if you need help with any claims. We can talk you through the process, especially if it goes to an employment tribunal. We can also help with a settlement agreement for you and the employee.

What happens when the claim goes to an employment tribunal?

If an unfair dismissal claim goes to an employment tribunal you will need to present your case to the tribunal.

These are the steps you need to take as an employer to prepare for any employment tribunals.

What do employers need to do before a hearing?

The employment tribunal office will give you at least 14 days’ notice usually before the hearing.

You will need to organise documents that will support your case. You can also organise any witnesses that can give direct evidence.

There may be an initial hearing before the employment tribunal. This is known as a preliminary hearing.

What happens if an employee wins an employment tribunal claim?

The tribunal can make an employer do certain things depending on the case. This could include:

• Paying the employee compensation.
• Paying the employee any witness costs.
• Improving their working conditions.
• Giving the employee’s job back.

You might also have to give the employee compensation. The amount depends on:

• The type of tribunal case.
• How much money the employee has lost because of the claim.
• Their age, length of service and salary.

How much compensation could an employee get?

The tribunal will assess what compensation the employee would be awarded. An employee securing compensation could be granted a compensatory award and a basic award.

What is a compensatory award?

This award is usually the largest of the two payouts. This is awarded through an employment tribunal.

If the employer loses the tribunal, the compensation would be for the damages they have caused the employee due to their unfair actions.

The tribunal’s maximum ‘compensatory’ award for unfair dismissal is one year’s salary, or £93,878, whichever is lower.

The employee may not receive any compensatory award if they start a new job immediately, with the same or more pay. This is because they have a duty to mitigate their loss.

What is a basic award?

The basic award is to compensate the employee for being unfairly dismissed. As an employer, you would need to pay:

• One and a half weeks’ pay per year of service if the employee is over the age of 41 or over.
• One week’s pay for each year of service if they are between the age of 22 – 40.
• Half a week’s pay for each year an employee has worked if they are under the age of 22 years.

The basic award is based on the employee’s gross weekly pay when you dismissed them. This could be up to £571 per year of service. The pay-out is stopped at a maximum of £17,130.

What can employers do if they unfairly dismiss?

You can try and resolve the case by offering to pay the employee claimant compensation. This is known as a settlement agreement and can be agreed upon at any time up to the hearing but preferably before the claim reaches an employment tribunal.

UK Employment Law specialists

Located in Manchester, we’ve been providing business owners with HR and Employment Law since 2006.

Available 24/7, our free employer advice service is second to none.

Our aim still to this day is to support small businesses with ACAS-code based advice.

We’ve received over 100,000 requests for advice. And successfully helped businesses avoid costly employment tribunals.

We are here to cater to your needs no matter how big or small the problem is.

or request a free call back