Most claims for Unfair Dismissal require 2 years’ continuous service but there are exceptions, including when the reason for dismissal is related to pregnancy or leave for family reasons, whistleblowing, asserting a statutory right or health and safety.
We know that money will be tight if you have been unfairly dismissed. We assess whether we might be able to offer a Damages Based Ageement (where you pay us a percentage of the compensation you receive) to bring an Employment Tribunal claim or identify whether you can use existing legal expenses insurance to pay your legal fees.
Our employment lawyers are based in our London office but can also see you at our Watford Office.
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Any employee with 2 years’ service can claim Unfair Dismissal. Automatic Unfair Dismissal, such as because of pregnancy or leave for family reasons, asserting a statutory right, health and safety or whistleblowing, has no qualifying period.
There can be a dispute as to whether or not you are an employee: your employer may claim that you are self-employed or “casual” with no right to claim Unfair Dismissal. Our unfair dismissal lawyers can identify your prospects of successfully arguing that you are an employee with the right to bring a claim.
The ACAS Code suggests that employees should not be dismissed without prior warning except in cases of gross misconduct. In an Unfair Dismissal claim, an Employment Tribunal would look at whether dismissal was within the “range of reasonable responses” to the employee’s misconduct.
Dismissal without notice is a breach of contract unless you had committed gross misconduct or payment is made in lieu of notice (where the Contract of Employment allows for this). You would have a claim for wrongful dismissal to be paid for the length of your notice period, whether or not you have 2 years’ service.
Dismissal without following any form of procedure is likely to be found to be unfair (assuming you have 2 years’ service). However, you are likely to face deductions from Unfair Dismissal compensation if you are found to have contributed to the dismissal or the Employment Tribunal find that following a fair procedure would still have led to dismissal. It is still therefore important to look at the underlying reason for dismissal and the likely response of a reasonable employer.
Although redundancy is a potentially fair reason for dismissal, you could claim Unfair Dismissal alleging either that there was not a genuine redundancy, the selection for redundancy was unfair or there was suitable alternative employment. You might also claim that your employer failed to consult properly with you, though the Employment Tribunal might limit compensation if they find that proper consultation would have made little difference to the overall decision.
Contracts of Employment exist whether or not there is anything written down on paper. Whether or not there is a written contract has no impact on your right to claim Unfair Dismissal: many claims involve situations without a written Contract of Employment. In fact, if your employer did not provide you with the statutory written particulars of employment, you may have a further claim.
It is possible to claim Constructive Dismissal if you resign in circumstances that your employer has acted in such a way that you are entitled to treat your Contract of Employment as terminated. If you are able to establish Constructive Dismissal, and you either have the necessary 2 years’ service or the reason is one of the prescribed automatically unfair reasons, you are likely to be able to claim Unfair Dismissal.
There is a 3 month time limit to bring a claim of Unfair Dismissal, running from the date of dismissal. If you do not submit your claim for ACAS conciliation within that 3 months, you are likely to lose your right to claim. Calculating the time limit to take the case to the Employment Tribunal after ACAS conciliation has concluded can be complex. You should take advice as soon as possible in order to avoid losing your right to claim.
We used to estimate that the average Employment Tribunal claim was heard around 6 months after it was issued. Much depends on the complexity and number of witnesses: the Employment Tribunal struggles to accommodate longer hearings, which will be listed further into the future than short hearings. Our current experience is that the Employment Tribunal Service is overstretched, with an increase in claims following the decision to quash Employment Tribunal fees, and that this is leading to delays in listing hearings.
Unfair Dismissal compensation is made up of
1) A Basic Award, calculated in the following way
For complete years worked aged 41 and over 1 ½ weeks’ pay
For complete years worked aged 22-41 1 week’s pay
For complete years worked aged under 22 ½ week’s pay
A week’s pay is subject to a statutory maximum, currently £525. A maximum of 20 years’ service is counted. As the calculation is the same as statutory redundancy pay, the easiest way to work out a Basic Award is to use the online calculator on gov.uk.
2) A Compensatory Award, which compensates you for any financial loss. This is usually loss of earnings but might also include the costs of looking for work or setting up a new business. A payment is also made for loss of statutory rights. There is a statutory cap on the Compensatory Award of one year’s salary or £86,444 whichever is lower (except in health and safety or whistleblowing cases).
The first £30,000 of any compensation for loss of employment is tax free. This means that most Unfair Dismissal compensation is not taxed. However, a change in the law means that for anyone dismissed on or after 6 April 2018, any payments in respect of your notice period will be subject to tax and national insurance.