How Do I Make An Unfair Dismissal Claim?

When you’re dismissed from your job, your first thought might be that you haven’t done anything wrong or perhaps that your employer has acted unreasonably.

If that’s how you feel, you could be a victim of unfair dismissal, and you might be able to challenge it.

If you want to discuss your case with a solicitor, please call us on 0203 007 5500.

What is unfair dismissal?

In short, unfair dismissal is where an employer terminates someone’s employment without good reason.

To be unfairly dismissed, the following requirements must apply:

• The employee must have been employed for at least two years.
• The employer terminated the employment without an acceptable reason.

Unfair dismissal or wrongful dismissal?

Unfair dismissal is when the reason was not fair in relation to regulations.

Wrongful dismissal occurs when an employer does not follow correct dismissal procedures e.g. notice or pay.

Unfair dismissal examples

There are several reasons that automatically make your dismissal unfair, including:

• Reasons connected to pregnancy or childbirth
• Reporting wrongdoing in the workplace, also known as whistleblowing
• Taking family leave e.g. paternity leave
• Asking for a legal right such as requesting to receive the national minimum wage
• Making a formal flexible working request
• Taking action (or proposing to act) over issues relating to the company’s health and safety regulations

An unfair dismissal still applies to employees with less than two years of employment.

How do I make an unfair dismissal claim?

Before issuing a claim to the employment tribunal, the employee must contact Acas (the Advisory, Conciliation and Arbitration Service). Acas will encourage a settlement between both parties before the claim reaches the employment tribunal.

If both parties can’t reach a settlement or don’t wish to conciliate, Acas will issue a certificate to end the conciliation process. The employee is then free to issue a claim at the employment tribunal and commence the proceedings.

During the proceedings, the employee needs to persuade the employment tribunal that the employer unfairly dismissed them. The burden falls on the employer to establish:

1. The reason for dismissal

2. That the reason for the dismissal falls within one of the five potentially fair reasons for dismissal.

If the reason falls under one of the five fair reasons for dismissal, it won’t be classed as unfair.

What evidence do I need for an unfair dismissal claim?

You need to ensure you have evidence that your employer has dismissed you. This could be in the form of an email or letter of termination.

It’s good practice for the employer to give a reason for dismissal in writing, and if you’ve been employed for two years, you have the right to ask for a written reason.

Once you have the reason, you can try to establish whether it’s fair or unfair.

If you choose to resign, have been made redundant, or have been suspended, you aren’t technically dismissed and therefore can’t make an unfair dismissal claim.

What are the five fair reasons to dismiss someone?

Under the Employment Rights Act 1996, there are five potentially fair reasons for dismissal, which are:

• Capability or qualifications
• Redundancy
• Conduct (for example, the employee has stolen from the employer or shown violence)
• Breach of a statutory duty or restriction
• Another substantial reason. For example, a personality clash between employees makes it impossible for them to work together.

There is a degree of overlap within these examples. The employee may find that the employer tries to justify the dismissal using a combination of the reasons. Once the employer establishes a fair reason for the dismissal, the tribunal must decide if it’s reasonable.

How much unfair dismissal compensation am I owed?

If successful, the tribunal will consider remedies, the most common of which is compensation. The compensation amount depends on factors such as the type and severity of the case.

In most successful claims, compensation comes as a basic or compensatory award.

Basic award

The value of a basic award depends on factors such as:

• Age of the employee
• How long the employee has worked at the company
• The amount of pay the employee receives weekly

Compensatory award

Unlike the basic award, a compensatory award is an amount the employment tribunal believes is fair, based on the employee’s losses from the dismissal.

How long do I have to make an unfair dismissal claim?

If you think you have a valid claim, it’s essential to act quickly as you’re on a time limit.

You only have three months minus one day to make an unfair dismissal claim to the employment tribunal.

What if I was forced to leave my job?

In some cases, an employer will make someone’s working life so difficult, that the employee feels they have no option but to leave.

This is called constructive dismissal and is still taken very seriously by the employment tribunal.