Was the Dismissal Unfair?
To bring a claim for Unfair Dismissal you have first of all contact ACAS (see below) and then you have to issue Tribunal Proceedings within 3 months of the effective date of termination of employment, once the Pre Claim Conciliation process has finished. Time is therefore short so if you want an Employment Tribunal to decide if your dismissal was fair you need to act fast!
The key requirements are that
- you were an Employee as opposed for example to an independent self employed Contractor
- as from April 6th 2012 you have at least 2 year’s continuous service as an Employee with the Employer in question – this applies only to Employees who started their job on or after April 6th 2012 – for everyone else the qualifying period remains 1 year
- you can prove that you were unfairly dismissed – if you resign the complex issue of Constructive Dismissal may well need to be considered
- the onus then shifts to the Employer to show that the dismissal was for a fair reason
A Dismissal may be fair if it can be shown that it was due to
- Capability or qualifications such as dismissal on the grounds of incompetence, lack of ability/aptitude, ill-health, etc
- Misconduct justifying dismissal
- Statutory illegality: an Employee could not continue to work without breaking the law because for example he is employed as a Driver and has been banned from driving
- Some other substantive reason
The ACAS Code for Employers
If you are an Employer then you should have been following the ACAS Code of Practice on Disciplinary Procedures since April 6th 2009.
This is not a legally enforceable obligation on Employers but the potential penalties for failing to comply with the ACAS Code can be severe. If an Employment Tribunal finds that there has been an unreasonable failure by the Employer to comply with a part of the ACAS Code of Practice they have the power to increase their Award of compensation by up to 25%.
The ACAS Code of Practice on Disciplinary Procedures requires an Employer wanting to take disciplinary action against an Employee to follow their set procedure including taking the following steps
- having a Pre-Disciplinary Investigation
- Written Notification Of Intended Disciplinary Action
- Disciplinary Hearing
- Appeal Hearing
ACAS Compulsory Conciliation Scheme
From April 6th 2014 Employees who wish to bring Employment Tribunal Claims against their Employers must first contact ACAS. They will appoint a Conciliation Officer who will contact the Employer to see if it is possible to resolve the dispute by conciliation. After that if, at any time, the Employer or Employee refuse to negotiate or, if a settlement is not possible within a 1 month period the Conciliator will issue a Certificate which will enable the Employee to issue a Tribunal claim.
The Employee will have
- a month from the date of the Certificate or
- 3 months plus the length of the conciliation period
whichever is the later to start a claim.
An Employer can also instigate the Conciliation process by contacting ACAS who will then appoint a Conciliator who will then contact the Employee.
How will this work?
- all negotiations will be conducted on a "without prejudice" basis which means that any refusal by either Party to negotiate and, any proposals made y either Party, cannot be mentioned or referred to in a subsequent Tribunal claim if Conciliation fails
- the Employer will be given notice of the Employee's intention to bring a claim
- both Parties will have an opportunity at an early stage to resolve the dispute by conciliation. There should be a reduction in Legal Costs because the Employer's Solicitor will have less work to do if conciliation is successful - we offer Employers an Insurance Scheme that would cover these legal Fees subject to any Excess payable under the Policy
- resolving a claim sooner rather than later should see the Employee find alternative employment sooner and reduce the loss of earnings claim
For advice on the Insurance Scheme we offer to Employers us on 0800 195 7517.
Remedies for Unfair Dismissal Claims
With effect from April 6th 2012 the qualifying period for the right to receive a written statement of reasons for dismissal, on request, increased from 1 to 2 years.
A Tribunal has 3 possible remedies available
- Re-engagement in a different role
- Compensation – the usual remedy
There are two elements to any compensation award
- the Basic Award and
- the Compensatory Award.
The Basic Award
Compensates Employees for the loss of job security following dismissal and is calculated according to a formula based upon age, length of service and average gross weekly pay. In respect of Dismissals (or any detriment complained of) taking place after April 6th 2015 the maximum weekly income for calculating the Basic Award will be £475.00 per week an increase from the previous figure of £464.00.
The Compensatory Award
The Compensatory Award compensates the Employee for financial loss sustained as a result of the dismissal at a level determined by the Tribunal as being ‘just and equitable’. The award is subject to a cap which is revised on the 1st February each year. It is calculated on a net basis and is payable even if the Claimant has reached or passed 65 so long as they are below the Employer’s normal retirement age. In respect of Dismissals taking place after April 6th 2015 the maximum Compensatory Award will be £78,335 replacing the previous figure of £76,574.
The Additional Award
Should the Employer fail to comply with a Tribunal Order to reinstate or re-engage the Employee a further Award based on 26-52 weeks pay can be made in addition to the Basic and Compensatory Awards.
Up to 90 days pay can be awarded to Employees where the Employer has failed to consult properly during redundancy consultations.
This is a complex area of the law whether you are an Employer or Employee but contact us and let us guide you through every step of the way ensuring that the best possible outcome is achieved.