Unfair Dismissal Compensation - The Basics

The law surrounding unfair dismissal is governed by the Employment Act (2008)

, in order to grant a case of unfair dismissal there are two independent aspects an Employment Tribunal considers. Either the dismissal was for an unfair reason' or the employer used an 'unfair procedure'. The statute informs employer's what constitutes a fair dismissal (the five reasons - see below) and what is the correct procedure to follow.

In order to be legally protected from unfair dismissal, you need to have been employed for at least one year. However, there is no requirement for length of service if the employer has dismissed you for an 'automatically unfair reason'. These reasons are those such as dismissals based on race, sex or disability discrimination (amongst others). There is a time limit for bring a claim against your employer for unfair dismissal, a case must be brought within 3 months of the date of your dismissal.

The following are legally 'fair' reasons for an employer to dismiss their employee. It is important to know that most cases are not straightforward and therefore if you think that you may have been unfairly dismissed then seek legal advice immediately.

1. Redundancy: the requirement for redundancies usually arises when a whole sector or area of a business closes down. If the staff for that area cannot be deployed throughout the business i.e. if the employer's resources just can't stretch then they can make employees redundant. Employers should follow a specific procedure in order for redundancy to be legal, this involves discussing selection processes with their employees and in many cases paying out a redundancy payment.

2. Conduct: needless to say if you commit theft, fraud or consistently breach the terms of your employment contract, then your employer can dismiss you on the grounds of conduct. However, your employer is still bound to follow a fair procedure.

3. Capability: this ground tends to apply to employee's who cannot deal with their everyday work, whether this is due to a lack of experience or qualifications. Dismissal can also be brought on this ground if the employee spends long periods of time absent from work, it cannot however circumvent the disability discrimination laws. The employer should always make an effort to help their employee i.e. by providing further training or counselling before dismissing them. Once again the employer is required to follow a fair procedure.

4. Statutory Reason: if a major requirement of your job is that you can drive and you receive a driving ban then your employer is entitled to dismiss you on this ground. This equally applies to employees that commit illegal activities whilst at work. The employer must still follow the statutory procedure.

5. Other substantial reason: this catch-all provision covers numerous different motives for dismissal. The key word however is that the reason must be 'substantial'. The employee must be left with no other option other than to dismiss their employee. They must also follow the correct dismissal procedures.

As mentioned at the end of every single one of these 'fair' grounds for dismissal, the employer has to follow a fair procedure. Therefore even if an employer has a fair reason for dismissing someone if they do not follow the correct statutory procedure, the dismissal can still legally be unfair and give grounds for an unfair dismissal compensation claim.

Fair procedure involves the employer acting reasonably and following a set disciplinary process i.e. by providing adequate warnings, holding disciplinary hearings and informing employees of their rights to have independent representation. There are a high percentage of employers that lose unfair dismissal compensation claims made against them for failure to follow the right procedures.

If you believe that you have suffered an unfair dismissal, or the process of your dismissal was not fair, then seek the advice of experienced employment solicitors as soon as possible.

by: Tim Bishop

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