There are a number of claims that you might have, and you need to look at all of these separately. Your claims could include :
- Wrongful dismissal
- Unfair dismissal
Wrongful Dismissal
In relation to the first of these - wrongful dismissal - you need to look at whether correct notice was given to you by your employer.
It is only in cases of gross negligence and gross misconduct that employers are entitled to dismiss you without notice.
What is "correct notice” for you will either be as set out in your contract of employment or the statutory minimum period, whichever is greater. The statutory minimum period is 1 week's notice for each full year of service, up to a maximum of 12 weeks' notice.
If you don't have an employment contract, you are entitled to what is called "reasonable notice”. What is "reasonable” depends on the facts of the case - how long you've been employed for, in what position, what notice are others in your organisation entitled to, etc.
Sometimes, employers make a payment in lieu of notice, so that you leave straight away rather than working your notice. This payment may or may not be tax-free depending on what is in your contract, how your employer has treated such payments in the past, and on how much the payment is (the maximum possible tax-free sum is £30,000).
Unfair dismissal
In relation to unfair dismissal, there are two factors to consider - the reason for the dismissal, and the procedure followed by your employer during the dismissal.
Quite apart from the fact that you generally have to have worked for that same employer for one year (soon to be two) before you are entitled to bring an unfair dismissal claim, it doesn't follow that all dismissals are unfair.
Not all reasons that an employer gives for dismissal are automatically "unfair”. Under the law, your employer can indeed dismiss you for certain reasons and some reasons are therefore "potentially fair” rather than "automatically unfair”.
If you want bring a claim against your former employer for unfair dismissal, you therefore need to consider whether the employer can show that he had a "potentially fair” reason for the dismissal.
The most common "potentially fair” reasons for dismissal are misconduct on your part, lack of capability on your part or that your role had become redundant, for example.
Our experience is that most employers are indeed able to show that they have relied on a "potentially fair” reason for making the dismissal - not many employers dismiss for no reason at all. Sometimes, though, people are for example made redundant when redundancy is not the true reason for the dismissal - what really may be troubling the employer is an employee's attendance or performance record. These cases are known as "disguised redundancies” and would almost certainly be unfair.
Assuming the employer can establish a potentially fair reason for the dismissal, the Employment Tribunal would then want to see that the dismissal was carried out in a fair manner. This is known as the procedural aspect of the dismissal.
What is a fair procedure will depend, firstly, on the reason for the dismissal and, secondly, on the size and administrative resources of the employer.
If the reason for the dismissal is misconduct, then there should have been a full investigation, a disciplinary meeting, a series of warnings (unless gross misconduct is being relied on) and a right of appeal should also have been given to the employee.
If the reason for the dismissal was because the employer said that that employee's role was redundant, then there should have been a consultation with all the "at risk” employees, and a matrix of fair and objective criteria for selection should have been used and applied. The employer should also have considered whether there was any suitable alternative employment for that employee, and the employee should have been given a right of appeal.
If you win a claim for Unfair Dismissal
If an employee succeeds in a claim for unfair dismissal, then although it is possible for Employment Tribunals to make the employer give the employee their old job back (reinstatement) or to give them a job but on different terms (re-engagement), by far the most common order made by Employment Tribunals is that the employer simply pays compensation to the employee.
Compensation in unfair dismissal cases falls in two parts:-
- A "basic” award - this is based on your age, length of service, and what a week's pay is for you (a cap is placed on a week's pay - currently £400)
- A "compensatory” award - this will be made up of the loss of earnings and other benefits suffered by you from the date of dismissal to the date of the Tribunal hearing, plus any future loss of earnings that the Tribunal considers attributable to the unfair dismissal. The maximum compensatory award that an Employment Tribunal can make is capped. For example in 2010 the cap was generally £65,300, and this cap is reviewed on 1st February each year.
If you have been sacked and you want to know whether you have a claim of any sort against your employer, please do not hesitate to call our Employment Law team - it's free of charge and they will give you chapter and verse on where you stand.
As we say, we are always there for people and families who are in our PURPLE LEGAL scheme. We invite you to join PURPLE LEGAL now. By joining PURPLE LEGAL, you can have all your legal enquiries answered free of charge by simply booking a SolicitorSlot for a time and date that suits you. Alternatively if you wish to speak to us now, please click on "Please Contact Me Now” or call us on 0845 567 5000. We look forward to always being there for you.
