Unfair Dismissal should not be confused with Wrongful Dismissal. Wrongful Dismissal is breach of
contract (and any compensation is damages ie notice pay) and Unfair Dismissal is a legislative term.-
The Employment Act 1996 provides that employees are entitled not to be dismissed unfairly. This has been a legal right in UK law since 1971.
To bring a claim of Unfair Dismissal at an Employment Tribunal, you must be an employee (it does not apply to “workers” or self-employed) and have 2 years continuous service with the same employer.
The main case which helped to guide Employment Tribunals as what would constitute an Unfair
Dismissal, is Burchill v British Home Stores. Although this case dates to 1978, it is still relevant now
and is a key case when a Tribunal is deciding whether a dismissal is fair or not. This case decided the
key elements that a Tribunal must decide on before ruling that a dismissal is unfair. These are:
• That the employer must genuinely believe the employee is guilty of the misconduct in question.
• It must have reasonable grounds to hold that belief
• That belief must be reached following a reasonable investigation
• That an employer does not have to reach a criminal standard of guilt (ie not beyond reasonable doubt but on the balance of probabilities)
• A criminal level of procedure does not have to be adopted
The Tribunal must also decide if the decision to dismiss fell into the “band of reasonable responses” open to a reasonable employer. In simple terms, does the punishment fit the crime.
Although a criminal level of procedure does not have to be followed, an employer would be expected to follow a fair procedure before dismissing and one that followed, as a minimum, the ACAS Code of Practice. A fair procedure would involve:
• A fair and thorough investigation to gather evidence • Presenting any evidence in advance of any disciplinary hearing
• Giving notice of any disciplinary hearing in writing at least 2 days in advance
• Providing the opportunity to be represented by a Trade Union representative or work colleague
• Providing for a right to appeal which would be heard by a higher level to the one who made the original decision and who has not been directly involved in the case.
• At least 2 warnings should be given before any dismissal for misconduct and any dismissal in these cases is with notice, unless the conduct is so serious that it constitutes gross misconduct (eg fraud, theft, etc) then dismissal can be without notice.
If an employer fails to follow the ACAS code of practice, an Employment Tribunal can award an uplift of any compensation of up to 25%.
An employer who does not follow the correct procedure can argue that even if it had, the decision would have been the same. This is called the Polkey defence after the case of Polkey v AE Drayton Services Ltd.
As well as misconduct dismissals, the Employment Act 1996, states that there are 4 other reasons where a dismissal can be fair. These are:
• On the grounds of capability (eg ill health, poor performance etc) • On the grounds of redundancy (these dismissals have statutory procedures that should be followed on the requirement to consult etc)
• A breach of a statutory restriction or statutory illegality (eg HGV driver loses his HGV licence, no right to work in the UK etc)
• Some Other Substantial Reason (SOSR). This reason is used in situation not covered by the others for example: personality clashes, other members of staff refusing to work with someone because of past criminal behaviour etc.
Should an Employment Tribunal find a dismissal is unfair, they can award compensation which is made up of:
• A basic award – This is calculated on the same basis as statutory redundancy pay
• Compensation – which is based on any loss of earnings. An employee who brings a claim is expected to try and mitigate their loss by actively seeking alternative employment. The compensation is based on actual loss of earnings so if a new job is at the same or higher level, compensation will only be calculated up to when the new job started. Any benefits received are also deducted.
• The maximum compensation award is 12 months salary or £86444 (this cap is reviewed every year, usually in April) whichever is lower.
Please call 03300 552 856 Whether a claim can be successful or not can be very difficult to decide. If you wish to discuss your case further, please contact us on 01904 755222 or email using the contact form on the website.