Why is unfair dismissal important

This means your employer must be able to justify their decision to dismiss you as fair — otherwise it will be an unfair dismissal. Determining what is fair can be a difficult issue. The Employment Tribunal will take several steps to resolve the matter.

Although not every case will go before a tribunal, the approach should be used to assess the strength of your case. Your employer must provide their reason, or main reason, for your dismissal when defending against an unfair dismissal claim. In addition, your employer is legally obliged to provide you with a written statement of why you have been dismissed, if you meet certain conditions. This can be used as evidence in any unfair dismissal claim. If they provide more than one reason, they must also indicate which the main reason is.

If your employer gives false or inaccurate reasons, the Employment Tribunal is free to determine the actual reasons for your dismissal and judge whether it was fair based upon those.

There are a number of reasons for a dismissal which your employer will be unable to justify. This means if one of these reasons is the basis for your dismissal, it will be automatically unfair.

The automatically unfair grounds for dismissal are:. If the reason is automatically unfair, then there is no need to go through the other steps to determine fairness. Provided their reason is not automatically unfair, it will be for your employer to show that it was fair. Your employer will have to state which of these categories their reason falls into.

The categories are:. If your employer has not followed the correct procedure when dismissing you, it does not necessarily mean your dismissal was unfair. However, your employer must show that, if they had followed the correct procedure, they would still have dismissed you — and that their reason is fair. An exception to this would be where an unfair procedure is followed. In these circumstances, this may constitute an unfair dismissal even if your dismissal itself was for a fair reason.

Before any steps are taken in an unfair dismissal claim, it is strongly recommended that you seek legal advice from a specialist employment solicitor.

They can help you to consider the strength of your case and advise you on your prospects of success. If your claim is very unlikely to succeed it is best to be aware of this as early in the process as possible. Although seeking legal advice should be seen as crucial step, you do not have to instruct that solicitor, or any other, to actually represent you in your case.

There is no legal requirement to have a lawyer acting on your behalf in an unfair dismissal claim. Nonetheless, employment law can be highly complicated and you may feel more confident in the chances of success in your unfair dismissal claim if you can rely on professional expertise. The first step to beginning your claim is to lodge your case with an organisation called ACAS.

However, it may be possible to resolve your unfair dismissal claim without going through the Employment Tribunal at all. They are an independent body who aim to help employees and employers resolve workplace disputes. They provide advice and training as well as the conciliation service. More information on ACAS can be found on their website. The idea behind Early Conciliation is to help you and your employer resolve your claim before involving the Employment Tribunal. Any agreements that are reached will take the form of legally binding contracts.

If you agree, ACAS will contact your employer to see if they are also willing to engage in the process. If either party — you or your employer — does not agree to engage with Early Conciliation, or an outcome cannot be negotiated, ACAS will issue their certificate and you may proceed to lodge your claim with the Employment Tribunal.

This can be done online or through the post. Free example ET1s can be found in our site here. The ET1 form also requires you to provide details of your unfair dismissal claim, such as the events and facts you are relying upon.

Our legal library contains several examples of Grounds of Claim for unfair dismissal claims. Once the Employment Tribunal receives your information, your employer will be contacted and asked to provide their formal response in a form called an ET3. The Employment Tribunal will then manage the case to set dates for the exchange of evidence, such as witness statements for example, and also to schedule a hearing.

If the Claim is not settled or withdrawn, then a hearing will take place. The hearing will involve the Employment Tribunal listening to the arguments of both sides and making their judgment. It is important to be aware that claims can be settled between the parties you and your employer at any point up to the hearing.

Just because the Employment Tribunal is involved it does not mean that your case will definitely proceed to a hearing. Also, ACAS conciliation is still available throughout the process provided you and your employer agree to it.

If your case does proceed to a hearing, it will usually be heard by a judge sitting alone. However, if your case is more complicated such as if discrimination is alleged, a panel of three may be present to consider your claim. Once a judgement has been given it will often represent the final resolution of your case. However, decisions can be appealed or reconsidered in very limited circumstances.

The grounds for an appeal can only be if the Employment Tribunal misapplied or misunderstood the law.

Your appeal is unlikely to be successful just because the tribunal did not decide things your way. Appeals will be heard by the Employment Appeal Tribunal, if it passes the sift.

This are very limited as well, usually when new evidence has come to light. It is rare for a decision to be changed, however. You can find reports of cases which have already been decided here:. If you would like to know more about happens in an unfair dismissal claim, listen to our podcast on the Employment Tribunal process with employment law barrister, Kevin McNerney.

There is also a time limit to submitting your claim to the Employment Tribunal. This is 3 months from your effective date of termination. It will begin running again if the Early Conciliation process fails. The time periods are particularly complex and require specific legal advice. These are very tight deadlines. The deadline for submitting your claim to the Employment Tribunal can be extended if the Employment Tribunal considers it reasonable to do so, but there must be a good reason to justify this.

It is unusual for an Employment Tribunal to extend the period. Determining this date is crucial to calculating the time limit to making your claim. As the name suggests, it will be generally the date upon which the end of your employment takes effect. If you were dismissed with a notice from your employer. The date upon when this period expires will usually be the effective date of termination. Search our website. Enter your search term.

Home Termination of employment. Back to top. Unfair dismissal. Print this page. Who can apply? Defining a small business. You can still make an unfair dismissal application during this time. The 21 day time limit for lodgment still applies. Introduction A person has been dismissed from their employment when: their employment has been terminated at the initiative of the employer, or they have resigned their employment but the resignation was forced by something the employer did.

If eligible, you can make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws: take our Unfair dismissal quiz to see if you may be eligible under the unfair dismissal laws. Do I need a lawyer? Workplace Advice Service The Commission has launched a Workplace Advice Service to provide access to free legal assistance to eligible persons, including small business employers seeking employment law advice.

What is an unfair dismissal? To make an application you must: lodge your application within 21 days of dismissal becoming effective be covered by the national workplace relations system be an employee who has been dismissed, and meet eligibility criteria, including the minimum employment period.

Defining a small business The Fair Work Act defines a small business as a business with fewer than 15 employees. What it means to me. Employer Employee If you've received notice from the Fair Work Commission about an application for unfair dismissal unfair ending or termination of employment , it means: Someone believes that you or your company has ended their employment unfairly. It gives them the chance to come to an agreement without having to go to tribunal. Find out more about early conciliation and making a claim to an employment tribunal.

A 'wrongful dismissal' is when an employer has breached an employee's contract. It's usually to do with notice or notice pay. If an employee wants to make a claim for wrongful dismissal, it does not matter how long they've worked for their employer. If you like, you can tell us more about what was useful on this page. Please do not include any personal details, for example email address or phone number.

If you have a question about your individual circumstances, call our helpline on We cannot respond to questions sent through this form. Breadcrumbs Home Advice Dealing with problems at work Dismissals.

Overview Dismissing someone fairly Dismissals with and without notice Unfair dismissal Constructive dismissal. Unfair dismissal If an employee thinks their dismissal was unfair they might be able to challenge it. In terms of wages, this includes contractual benefits, such as a company car, private medical or health insurance. It can also include non- contractual benefits, provided you have a reasonable expectation of the same.

You can also include a claim for your loss of bonus or commission if you reasonably expected to receive this, even if such payments were discretionary. Assessing future loss is always going to be a speculative process for the tribunal.

This will depend on whether you have managed to mitigate your loss and found another job before the hearing date, the date this happened, and the amount of your new salary.

The tribunal will need to identify an appropriate cut-off point for compensation if you have not secured any new employment as at the hearing date. Assuming you win your case, the tribunal will assess your total loss, and you will have to give credit for sums already received from your employer, such as pay in lieu of notice or enhanced redundancy payments.

Please click here for the order of deductions that will be made from an award of damages. However, this is not the position if your claim is for constructive dismissal , where earnings from alternative employment during the notice period should be taken into account. This does not, however, mean that a settlement by way of negotiation above this figure cannot still be achieved which we have achieved many times.

In some cases, there is no cap on the compensation that can be awarded. These include cases where as well as unfair dismissal, there is a claim for discrimination , whistleblowing , a breach of a health and safety issue or where you are dismissed after trying to assert a statutory right. As mentioned above, in making an award for compensation in these cases, an Employment Tribunal has the power to reduce both the basic award and the compensatory award.

This can happen if a tribunal finds your conduct was a contributory factor. A reduction can also occur where your employer can show that even if they had followed a correct process, the decision to dismiss you would still have been the same outcome this is known as a Polkey reduction of damages. In many cases where someone is facing an unfair dismissal situation, a negotiated settlement is possible.

This is almost exclusively what we do very successfully, so please do speak to us. Unfair Dismissal is a vast area and each case is determined on its facts. You should obtain professional advice as soon as possible if you think you have a claim.