Can my employer dismiss me for lack of capability? What is the difference between dismissal with notice and without notice? Am I entitled to a written statement for reasons for dismissal? I have been threatened with dismissal following disciplinary action but have been given the option of resigning. What should I do?
How can I claim against my employer if I feel that I have been dismissed unfairly? When an employer terminates my employment, as well as unfair dismissal, what other claims might I have against my employer? If I have been unfairly dismissed, what could I achieve by going to an employment tribunal? What is wrongful dismissal? Can I be dismissed without proper notice? Share This:. What is WorkSmart? A career coach that works for everyone. 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. 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. 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.
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:. If the reason is automatically unfair, then there is no need to go through the other steps to determine fairness. Provided their reason is not automatically unfair, it will be for your employer to show that it was fair.
Your employer will have to state which of these categories their reason falls into. The categories are:. 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. 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. However, it may be possible to resolve your unfair dismissal claim without going through the Employment Tribunal at all. 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. 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. This can be done online or through the post. 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. 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. This are very limited as well, usually when new evidence has come to light. It is rare for a decision to be changed, however.
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.
There is also a time limit to submitting your claim to the Employment Tribunal. This is 3 months from your effective date of termination. It will begin running again if the Early Conciliation process fails. The time periods are particularly complex and require specific legal advice.
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. 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 1 st 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. 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. 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. 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. 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. You may have to accept that the only job you might find would be on a lower wage than your previous job. It may be worth having more realistic expectations about how much you would get from a tribunal if you were to make a claim.
If you're willing to accept a reasonable figure, you may be able to reach a settlement with your employer. You can then avoid going to a tribunal. You can't be awarded more than one year's gross pay. You can check if your compensation will be below the limit. A tribunal could also award you a lump sum to make up for the fact that you'll have to be in any new job for two years before you'll have the right to claim unfair dismissal.
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