Unfair Dismissal & Misconduct
If you feel that you have been unfairly dismissed by your employer, it is important to know your rights so you know whether you can claim for unfair dismissal. In some cases, your employer may not even provide you with any notice or warning prior to the dismissal.
So, what is unfair dismissal? If your employer dismissed you without providing a valid reason that can be justified, you have potentially been unfairly dismissed. In addition to this, if your employer failed to act reasonably under the circumstances, there’s a good chance you will be able to seek compensation. An employer must follow certain rules and procedures before they can fairly dismiss an employee, whether the employee works full-time or part-time, everyone must be treated equally.
To qualify for claims for unfair dismissal, generally you must have two years of continuous service. However, there are exceptions to the rule. If you feel that you have been discriminated against, you should seek advice since there is no minimum qualifying period for dismissals linked to different types of Discrimination. There are other exceptions too, especially where employees are treated badly or dismissed after seeking to pursue legal rights or Whistleblowing.
Misconduct is one of the five permitted reasons when an employer can terminate a contract of employment. If an employee’s conduct is considered to be so bad as to warrant a dismissal, this is known as gross misconduct.
Most contracts of employment or disciplinary policies will set out what an employment considers to be gross misconduct. Usual examples include:
- Serious breach of health and safety
- Gross negligence
- Drug or alcohol abuse in work
- Physical assault by an employee
- Fraudulent or dishonest activities, to name but a few.
Before a dismissal takes place, and employer must ensure that they have conducted a fair and reasonable investigation into the alleged misconduct, and thereafter follow a fair process. When deciding on the appropriate sanction, and employer should take into consideration all factors; this can include the employee’s length of service, the employees disciplinary record, what sanctions have been applied to other employees who have committed similar acts, and any other mitigating factors.
A Tribunal will not only consider the procedural fairness of a dismissal but will also consider whether the decision to dismiss was ‘within the bands of a reasonable response’. When considering the ‘reasonable responses’ test, a tribunal must not substitute its own opinion as to what it considers to be reasonable in all the circumstances, but will ask the hypothetical question of whether another employer, faced with the same set of circumstances, would have taken the same action.
Where a tribunal considers that an employee contributed to their own dismissal by virtue of their conduct, a tribunal can apply a reduction to any compensatory award made. Similarly, where there has been procedural unfairness, but a tribunal concludes that but for the procedural failings, the outcome would have been the same this is known as a ‘Polkey defence’ and if successful a reduction can be made to any compensatory award.
On the flip side to this, if a tribunal makes a finding of unfair dismissal, and concludes that the employer had failed to follow either its own, or a fair process and procedure, then an employee could claim an uplift of up to 25% on the compensatory award as a ‘penalty’ payment.
How Do Unfair Dismissal Claims Work?
First, you must register your case with the Advisory, Conciliation and Arbitration Service (ACAS) Early Conciliation.
Registering with ACAS, under the Early Conciliation scheme, is a steppingstone for further legal action. If conciliation fails, they will issue you a certificate to make your claim with the Employment Tribunal. Sometimes ACAS will be able to achieve a solution through acting as the mediator in the dispute.
With your certificate, employees can lodge an ET1 claim with the tribunal. The employer thereafter has 28 days to respond with an ET3 form, detailing if they are challenging the claim.
It is essential that a claim for unfair dismissal must be instigated with the ACAS Early Conciliation process within 3 months less one day of the effective date of dismissal. This date can be found on your P45. It is also essential that you give the correct name of your former employer.
Once a claim elevates to a tribunal hearing, evidence and witnesses will be required. The employer will have to show that dismissal was for a potentially fair reason. The Tribunal will have to decide if dismissal was fair in all the circumstances. In cases of misconduct the ‘burden of proof’ will be on the employer to show that the dismissal was fair and reasonable in all the circumstances.
Ultimately, the nature of a tribunal is to determine if the employer had sufficient reason and due cause to dismiss an employee, while also considering if dismissal was a fair reaction.
What Compensation Is Available?
Compensation is calculated based on two figures: a basic award and a compensatory award. The former is calculated based on your weekly pay when terminated multiplied by an age-based formula, multiplied by the number of years you were continuously working there. A cap is applied to weekly pay. Your service is capped at a maximum of 20 years.
The compensatory award, however, looks to compensate employees for any losses incurred due to the unfair dismissal, both in the form of wages, pension, and other financial losses. However, this is a very speculative process and the tribunal will often need to determine many factors. For example, if the employee has not managed to find new work, the tribunal will need to determine what length of time it is likely to take the employee to find new employment. There is a maximum award in most cases of one year’s pay.
If an employee has not been able to secure alternative employment by the date of the Tribunal hearing, the employee will be required to produce detailed evidence of ‘mitigation’. This will include all the steps the employee has taken to reduce their lose, so for example, evidence of all job searches, job applications and job interviews should be kept.
The difference between Unfair Dismissal and Constructive Dismissal…
Although people use the terms unfair dismissal and constructive dismissal interchangeably, there is in fact a distinct difference between the two. Unfair dismissal relates to a situation where the employer has terminated the employment relationship. If the dismissal was not for one of the 5 permitted reasons for dismissal recognised by law, the dismissal will be unfair. The dismissal can also be unfair if appropriate processes haven’t been followed or the Tribunal doesn’t believe the dismissal to be justified.
Constructive dismissal refers to any case when employees resign because they have been treated so badly by their employers that they are simply unable to continue working under such circumstances. It is often referred to as being “forced out” of a job. The dismissal may also be an unfair dismissal.
For both unfair dismissal and constructive dismissal claims an employee is required to have 2 years continuous service with the same employer. There are some exceptions to this. If you require further advice, contact a member of our specialist employment team.