Brown Turner Ross

Unfair Dismissal

Was the Dismissal Unfair?

To bring a claim for Unfair Dismissal you have to issue Tribunal Proceedings within 3 months of the effective date of termination of employment.

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
• Redundancy
• 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

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 do so can be severe, because where a 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

• Pre-Disciplinary Investigation
• Written Notification Of Intended Disciplinary Action
• Disciplinary Hearing
• Appeal Hearing

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

• Reinstatement
• Re-engagement in a different role
• Compensation – the usual remedy

Compensation

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. With effect from April 6th 2012 the maximum weekly income for calculating the Basic Award was increased to £430.00 per week.

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. With effect from April 6th 2012 the maximum Compensatory Award has been increased to £72,300.

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.

Protective Award

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 contacts us and let us guide you through every step of the way ensuring that the best possible outcome is achieved.