Unfair Dismissal FAQ
What is unfair dismissal?
Unfair dismissal is when an employee is dismissed, the employee qualifies for the right to bring an unfair dismissal claim and, either the employer did not have a fair reason to dismiss the employee, or the employer did have a fair reason, but the matter was dealt with unfairly.
What is a constructive dismissal?
This is where the employer's conduct is regarded as a serious breach of the employment contract, showing that the employer no longer intends to be bound by the contract. An example of this would be where the employer refuses to pay salary. In these circumstances the employee is entitled to terminate their employment with or without giving notice. To succeed in a constructive dismissal claim, the employee must show that the employer's action amounted to a fundamental breach of contract and that the employee resigned as a result of that breach and not for some other reason. It is important that employees seek employment law advice before taking any action in such a situation
What is a fair dismissal?
There are currently five potentially fair reasons for dismissal. These are:
- capability
- conduct
- redundancy
- contravention of a statutory enactment
- some other substantial reason, for example, business re-organisation
In addition to showing that the dismissal was fair and reasonable in all the circumstances, the employer would have to show that a fair procedure equating to at least the statutory dismissal procedure had been followed.
Are there any automatically unfair reasons for dismissal?
Yes. A dismissal will be found to be automatically unfair where the employee is dismissed in certain circumstances, including dismissal for:-
- asserting a statutory right
- health and safety reasons
- reasons relating to pregnancy or childbirth
- certain trade union reasons
- for making a protected disclosure ("whistle-blowing")
In these cases the reasonableness of the employer's actions is irrelevant.
What length of service do employees have to have before they can complain of unfair dismissal?
Where the reason for an employee’s dismissal is one of the potentially fair reasons for dismissal, an employee must have at least 2 years' service at the date of dismissal if they commenced employment on or after 6 April 2012. Employees employed before that date only need 1 year's service to raise a claim.
What are the exceptions to the two year/one year rule under unfair dismissal?
Normally an employee has to have 2 years' continuous employment with an employer to bring a claim for unfair dismissal (or 1 year's continuous service in the circumstances described above). The exceptions to this include:-
- Where the employee is dismissed as a result of trade union activities or because they are a member of a trade union or refuse to join a trade union
- Where the dismissal was connected with the employee's pregnancy and maternity rights
- Where dismissal was due to the employee observing health and safety rules
- Where dismissal was due to the employee making a protected disclosure ("whistleblowing")
- Where dismissal was due to asserting a statutory right
This list is not exhaustive. If an employer anticipates that a dismissal may be interpreted by an employee as falling within one of these exceptions then it is advisable to obtain employment law advice in order to identify the risk of a Tribunal viewing the dismissal in that way.
Is there a time limit for bringing an unfair dismissal claim?
An employee must bring an unfair dismissal claim within three months (three months less one day) of being dismissed. Extensions of this time limit are very rare and if an employee does not bring a claim within this time the employee will lose the right to complain before a tribunal. We would recommend an employee speaks with one of our employment law solicitors as soon as they can to ensure they get the best advice within the time limits.
What are the various awards open to a tribunal?
A Tribunal can order that the employee be reinstated in their job or re-engaged, which is where the employee returns to a similar job with the employer. However, it is very rare for either of these to be ordered by a Tribunal due to reluctance to force an employer to take an employee back.
Compensation will normally be awarded when an employee wins their case. The compensation will consist of a basic award and a compensatory award.
How is the basic award calculated?
The basic award is calculated by taking into account the employee’s age, years of service and average weekly wage. The weekly pay figure is capped at a maximum of £430 per week and the maximum number of years’ service that will be considered is 20. The award is calculated as follows:-
Years of service below 22 years of age, the weekly pay is multiplied by 0.5
Years of service between 22 and 41, the weekly pay is multiplied by 1
Years of service from 41 onwards, the weekly pay is multiplied by 1.5
What is the maximum basic award that can be made?
The maximum basic award is £12,900.
What is the maximum compensatory award?
The maximum compensatory award is £72,300. However, it should be noted that there are some exceptions where no limit is placed on the amount of the compensatory award, for example, in discrimination cases.
See also:-
Dismissed Employee Survival Guide
Further Information is also available at:-
Contact Us
You can contact the employment law team in Edinburgh, Glasgow or London. For an initial informal discussion contact Innes Clark:
T: 0131 247 1181
E: innes.clark@morton-fraser.com
