When assessing a claim for unfair dismissal, the employment tribunal will consider whether the termination of your employment was fair or unfair by looking at:
- The reason for your dismissal; and
- Whether your employer acted reasonably in all the circumstances.
It is possible for an employer to dismiss fairly for five reasons: conduct, capability (which can include poor performance and ill health), redundancy, breach of a statutory requirement and “some other substantial reason”.
If the Employment Tribunal accepts that your employment was genuinely terminated for one of those reasons, the tribunal will then consider if employer followed a fair procedure, and whether it was reasonable for your employer to bring your employment to an end for that reason therefore whether the employers decision to dismiss was within a range of reasonable responses to the situation. The Tribunal when reaching a decision will consider all the circumstances including the size and administrative resources of the business.
There are some circumstances in which a dismissal will be automatically unfair. For example, if a woman is dismissed because her employer has learned she is pregnant, or if an employee is dismissed for trade union activities or because they have made a protected disclosure at work (”whistleblowing”). If the tribunal decides that your termination of employment was automatically unfair they will not need to consider the reasonableness or otherwise of your employer’s decision or the fairness of the procedure.
COMPENSATION FOR UNFAIR DISMISSAL
If you are successful in your claim for unfair dismissal, you will be entitled to claim a “Basic Award” (calculated on the basis of your age, salary and length of service) which is essentially similar to a statutory redundancy calculation. In addition, the tribunal has a discretion to award you compensation for any financial loss flowing from the dismissal. (The “Compensatory Award”. This is in essence the loss that you have suffered by being out of work therefore the earnings you have not received until you have found further work to go to. This can also include the loss of any benefits, including pension, and any expenses you incur in seeking new employment. You may also be able to claim continuing losses after you start a new job if you are unable to find new work at the same level of salary and benefits as you were earning before being dismissed. For most types of unfair dismissal, the amount you can achieve in damages is capped at a statutory maximum but for certain types of dismissal which are deemed to be discriminatory or perhaps due to an employee making a protected disclosure are uncapped.
Employees are under an obligation to try to keep their losses to a minimum and therefore may need to demonstrate to the Tribunal that they have been actively seeking work.
There are strictly time limits involved in being able to raise a claim for unfair dismissal and therefore if you think you may have been unfairly dismissed it is important that you contact a solicitor as soon as possible to advice you.