Navigating unfair dismissal

Being let go from a job is always devastating. However, sometimes the situation under which you are let go, is classified as unfair, and therefore, an infringement of your employment rights.

The dismissal process is of course a complex, and often difficult one. That being said, if your employer terminates your contract for exercising your worker rights, or on a discriminatory basis, then this is unfair dismissal.

While it is certainly a stressful situation, you do have rights and you can challenge this dismissal, so don’t worry! An Employment Tribunal (ET) is typically where you’ll fight your case.

And, more and more people are pursuing justice in the workplace. According to a 2019 Ministry of Justice (MoJ) report, ET claims are up 26% year-on-year. Specifically, unfair dismissal claims are up 19.97%.

Read ahead to uncover the meaning of unfair dismissal, discover how the law has got your back, and what steps you need to take to resolve the situation.

What is unfair dismissal?

The first important issue to address when navigating the realm of dismissal, is whether or not you have actually been dismissed. You may find this statement a confusing one, but it is essential you identify where you stand in the dismissal process.

While companies will certainly vary in their approach, each should have a formal procedure. Typically this will involve your employer sending you a letter outlining the reasons they are considering your dismissal, followed up by a formal meeting to discuss these issues with you. This will conclude in a formal disciplinary decision. You should always have the opportunity to appeal this.

Once you’ve determined that you have in fact been dismissed, you may question the reasons behind your employers decision. Perhaps something they said doesn’t sit quite right with you.

Well, unfair dismissal occurs when an employer terminates an employee’s contract unlawfully. But what counts as unlawful dismissal?

How does the law back you up?

Under Section 98(2) of the Employment Rights Act 1996 (ERA), there are five reasons an employer can lawfully dismiss you from your position. These reasons include:

• An employee has been involved in workplace misconduct, such as continual poor timekeeping, discriminatory behaviour or theft
• An employee is unable to perform at the standard required. This could be due to an employee’s persistent poor health, or an employee lacking the qualifications or skills required
• An employer is forced to make redundancies,
• An employer can no longer employ a worker, as continued employment would be a breach of a statutory restriction; and
• Some other substantial reason (SOSR). This could include the expiry of an employee’s fixed term contract, or an employee refusing changes to the terms and conditions of their contract

Contrastingly, the following reasons qualify as “automatically unfair” dismissal:

• Dismissal based on an employee’s pregnancy and other maternity related reasons
• Dismissal due to an employee exercising their right to parental leave and time off for dependants
• Dismissal due to discrimination, whether this is based on race, age, sex, disability, religion or belief, gender reassignment. sexual orientation, or marriage/civil partnership
• Dismissal due to an employee being a member of a trade union and partaking in trade union activities
• Dismissal due to an employee carrying out their health and safety duties
• Dismissal due to an employee whistleblowing
• Dismissal for requesting to be paid the National Minimum Wage;
• Dismissal of a part-time or fixed-contract worker seeking to exercise their employment rights
• Dismissal of an employee for making request relating to studying or training

If the reason an employee is dismissed is not in the above list, then they must have completed a qualifying period of two years, before submitting an unfair dismissal claim to an Employment Tribunal (ET).

Additionally, in order to take a claim forward, the individual must be an employee of the company. However, if you belong in the following list, you cannot pursue a case:

• You are self-employed
• You are an agency worker or classified as a ‘worker’
• You are registered as a dock worker
• You work overseas or for a government outside of the UK
• You are classified as a share fisherperson
• You work for the police force or the armed forces

How to navigate the next steps

Despite many individuals having the right to pursue a claim against unfair dismissal, it can be challenging to figure out the route you need to take.

First and foremost, when faced with unfair dismissal, you should try and resolve the issue internally. This can be done through using your company’s appeal process. For this process, it might be a good idea to ask for help from your trade union, a local citizen’s advice, or reach out to an advocate. They can help you negotiate with your employer.

If your company doesn’t have an appeal process, you might be able to get help from Acas. This organisation can help you with “early conciliation”, the step you must take prior to launching a tribunal claim. This process must start 3 months less 1 day of the day you’re dismissed.

The last way of challenging an unfair dismissal is taking your case to an ET. If you choose to go ahead with this decision, be prepared, both in relation to evidence and mental fitness. Tribunals can be incredibly stressful, and there is always the chance you will not be able to prove your case.

However, if your case does succeed, the ET can order reinstatement or re-engagement, although this is rarely the option chosen by the complainant. Instead, the typical outcome of these cases is a compensation payout.

This compensation will be made up of a “basic reward” and a “compensatory reward”. The former is calculated based on the claimants pay at the time of dismissal, as well as other factors such as the length of time the individual worked for the company, how old they are, and weekly pay before NI and tax deductions. The latter, is made to ensure that the claimant is in the same financial situation that they would have been in, if not dismissed. This is capped at £88,519.

Final thoughts

So, whether you’re planning on pursuing an unfair dismissal case and taking it to the ET, or just curious about your employment rights, you’re now equipped with all the knowledge you need to navigate dismissal.

Don’t let yourself be intimidated by cantankerous companies, or a boss with a bone to pick. Utilising your employment rights means that your reputation won’t be tarnished, and you have the chance to start the next chapter of your working life on a fresh page, and perhaps…even with a little extra cash in your pocket.