What is unfair dismissal and who qualifies?

This is where an employer cannot prove that an employee’s dismissal was for a legitimate and justifiable reason.

There are five different categories for a reasonable dismissal:

• Capability – The employee did not have the required qualifications or ability to carry out their role.
• Conduct – The employee demonstrated misconduct, such as dishonesty.
• A genuine redundancy situation – Find out more about redundancy here.
• Conflict with the law – The continuation of employment would risk breaking the law. One example might be if the employee needed to drive as part of their position but has now lost their licence.
• Some other substantial reason – Rationale that cannot be categorised as any of the other reasons, but is still fair.

What is the unfair dismissal qualifying period of service?

This gives employees the right to not be subject to unfair dismissal, and is generally a period of two years. If you’ve carried out work in a self-employed or agency context, then this work for your employer could be deemed as part of a period of continuous employment.

The following types of work breaks are permissible:

• Sickness, maternity, paternity, parental, adoption, or annual leave
• Working overseas for the same employer
• Military service
• Temporary lay-offs
• Employer lockouts
• Any time between unfair dismissal and being reinstated
• Any time moving between associated employers
• Any time between the business being transferred from one employer to another
• Any time between a corporate body being taken over by another due to a legal change

What is automatic unfair dismissal?

An automatic unfair dismissal means the continuous period does not need to apply because your situation meets an exception to the rule. Such exceptions include:

• The dismissal was connected to a health and safety reason that you became aware of
• You asserted a statutory employment right (such as parental leave)
• You were involved in whistleblowing or trade union activities

What rights do I have if I’ve been unfairly dismissed during the pandemic?

Your rights are exactly the same as they would be otherwise.

Specialist unfair dismissal solicitors, like Optimal Solicitors, can help you with your claim. Get in touch today to understand where you stand legally.

The unfair dismissal claim process

If you believe you have a case, then you will need to follow a particular claims process.

What is the unfair dismissal claim process?

1. Notifying Acas – You must do this within three months of being dismissed. This is your ‘effective date of termination’, and the unfair dismissal time limit. It’s a legal necessity to inform Acas and, upon doing so, you’ll then receive a certificate from them to confirm that they’ve been notified.
2. Early conciliation – You should consider early conciliation as this will ideally avoid an employment tribunal. Acas will be the intermediary between you and your employer so that you can achieve a mutually acceptable outcome, which will then be put into a legally binding contract. If either of you doesn’t wish to take part in the early conciliation, or the issue is not settled, then you’d move on to the next stage of the process: an employment tribunal.
3. Employment tribunal – This would begin with you submitting an ET1 form where you’ll detail your case. Your employer will then be contacted to provide their response in an ET3 form. Dates will be fixed for exchanging evidence and a hearing.
4. Hearing – Your case will usually be heard by one judge, but if it’s particularly complex then there may be a panel of three. Following the hearing, the judgement will be given, and this will likely be the final resolution. There are a few circumstances where the decision can be reconsidered or appealed.
5. Appeal or review – To attempt to appeal, the grounds must be that the tribunal either misapplied or misunderstood the law. If it’s heard, then it will be by the employment appeal tribunal. The rationale behind a decision being reviewed is very limited too – for example, only if new evidence is provided.

What compensation can I get?

There are two types of unfair dismissal claim amounts: basic and compensatory award.

The sum for the basic award is:

Length of continuous service (up to 20 years) x your age + weekly pay (at the end of your employment).

Find out your weekly pay using the below table:

The maximum limit for weekly pay is £538, and does not normally include overtime. There is also an upper limit for the total basic award of £16,140.

The compensatory award is assessed following the basic award, and only if it is deemed fair to. You’ll need to have suffered loss due to the unfair dismissal and the actions of your employer. You can claim for loss of:

• Wages and future wages (including contractual and non-contractual benefits)
• Statutory rights
• Pension
• Bonus or commission

This award is capped at £88,519 or 52 weeks’ gross salary (whichever amount is lower).

Constructive dismissal FAQs

This is where you were forced to resign due to your employer’s conduct, making your role untenable.

What is the difference between constructive and unfair dismissal?

Constructive dismissal is where the employee resigns, whereas unfair dismissal can occur where an employer dismisses the employee.

What reasons are there for claiming constructive dismissal?

Grounds for constructive dismissal claims include:

• A considerable salary reduction (or threat of)
• Demotion without a just reason or in breach of contract
• Unfounded claims of poor performance
• Unreasonable disciplinary proceedings
• Harassment or bullying

Can I take my constructive dismissal claim to an employment tribunal?

Yes, you can. This follows the same process as an unfair dismissal case, and so you would need to bring it within the three-month time limit. Constructive dismissal compensation is also the same.

How to challenge wrongful dismissal

A wrongful dismissal is unlike both unfair or constructive dismissal as it doesn’t look at what you allegedly did wrong, but what the employer did.

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

While unfair dismissal is an unlawful dismissal, wrongful dismissal is where your employer has breached their contractual obligations. They would then have to pay you for the damages for wrongful dismissal.

You may claim for wrongful dismissal even if you have a case for unfair dismissal. In fact, it can be more financially beneficial if you’re on a high salary and have a long notice period, for example. You could therefore get more from the losses suffered rather than the amount potentially to be gained through unfair dismissal. After all, the maximum claim for unfair dismissal compensation is around £80,000 (the statutory cap) and is predominantly limited to loss of earnings.

What reasons are there for claiming wrongful dismissal?

The reasons can include that you received no or inadequate notice, or that your fixed-term contract was terminated before its expiry date.

Can I take my wrongful dismissal claim to an employment tribunal?

Yes, you can. Like with an unfair or constructive dismissal case, you must make your claim within three months of your effective termination date. Through a tribunal, the maximum wrongful dismissal compensation is capped at £25,000.