Unfair dismissal

What is unfair dismissal ?

Employees with more than 1 year’s employment have a statutory right not to be unfairly dismissed. Breach of this right gives the employee the right to make a claim to the Employment Tribunal within 3 months less 1 day of the effective date of termination.

What is constructive dismissal ?

Constructive dismissal is a form of unfair dismissal. The important thing to note here is that constructive dismissal is where the employee resigns rather than is dismissed. With a constructive dismissal case, the initial legal burden of proof is with the employee, which is a disadvantage.

The essence of a constructive dismissal claim is that the employee is claiming that he or she has resigned due to a fundamental breach of contract by the employer such that the employee is put in such a difficult position so as to consider themselves affectively dismissed by the employer. To amount to constructive dismissal,  a breach of contract or serious of breaches must be very serious and the employee needs to have acted promptly on the breach, since otherwise the employer will argue that any time delay between the breach and resignation weakens the employee’s argument that they have been placed in an untenable position..

What is a fair dismissal ?

A fair dismissal needs to be based on fairness in substance and fairness in terms of procedure before dismissing.

There are a number of statutory headings under which an employer can defend an unfair dismissal claim on the basis that the dismissal was in fact fair in terms of substance. The overall test is that the employer needs to have acted within a “range of reasonable responses”  in response to the  alleged behaviour of the employee. Irt is not necessary for the Tribunal panel to agree with the employer’s decision, it must simply be a decision which falls within the range of reasonable responses test. The statutory categories are : -

• Gross misconduct or a series of acts of misconducts where warnings have been given previously.
• Lack of capability despite having been given opportunities and warnings to improve performance
• Dismissal due to genuine redundancy
• Some other substantial reason.

What is an automatically unfair dismissal ?

Certain dismissals are automatically unfair including if related to  :-

• Trade Union Membership.
• Health and safety related.
• If related to a Transfer of Undertakings (TUPE).
• Refusing to give up rights under the Working Time Regulations.
• whistle blowing legislation.
• rights to be accompanied at a grievance or disciplinary hearing.
• rights to parental, paternity or adoption leave, time off for looking after dependants, maternity leave or the right to ask to work flexibly.

What awards can an Employment Tribunal give for unfair dismissal ?

• Compensation – a basic award similar to redundancy plus a compensatory award relating to proven losses. It is important to note here that the employee has a duty to mitigate his or her losses and to seek to find suitable alternative employment on an active basis.
• Reinstatement in previous role (very rarely ordered for obvious reasons).
• Re-engagement which means returning to another job with the same employer

The maximum compensatory award is capped and is currently £68,400.00. Tribunals can adjust awards up or down by 25%.

What’s the difference between unfair dismissal and wrongful dismissal ?

In contrast to unfair dismissal, wrongful dismissal is a breach of contract claim. Wrongful dismissal claims are often brought by high earning employee’s whose claims would be considerably in excess of the statutory capped amount available with an unfair dismissal claim.

Warings can help

We have wide experience of advising and representing employees on unfair dismissal claims and have a good success rate in both negotiating settlemenst of claim at the eraliest possible stage but also in representing clients in the Employment Tribunal, whether in the Watford Employment Tribunal or Central London Employment Tribunal.

Our clients come from throughout London and Hertfordshire but we have many clients in the local areas of  Barnet, Brent, Enfield, North & North West London and in the immediate surrounding areas of Barnet, Finchley, Southgate, Cockfosters, Enfield. Wherever you are based in London, if you need sound employment law advice on an unfair dimissal claim, please get in touch with David Winston, head of our unfair dismissal team.