Have you been unfairly dismissed? or worried that you might be?

Unfair dismissal can be more complicated than people think.  If you want to protect your position and maximise your chances of a successful outcome, you should act quickly.

If you approach the situation shrewdly, you may be able to save your job, your reputation and a lot of stress and hassle. If your employment does end (through your employer dismissing you or perhaps through you resigning), you might decide to pursue an Unfair Dismissal claim in the Employment Tribunal. This could allow you to recover your notice pay, a Basic Award of up to £15,240 and a Compensatory Award of up to a year’s gross pay (or £83,682). In some cases, damages can even be unlimited.

Approach it badly, however, and you could find that you end up dismissed – even summarily dismissed, with no notice pay – and with a significant blot on your employment record. Your prospects of a successful Employment Tribunal claim may also be diminished or even scuppered altogether.

If you are still employed but think that a dismissal is possible or likely, important tactical questions are:

What’s really going on? Is it really your conduct or is there a hidden agenda?
Can you turn a hidden agenda to your advantage?
Do you defend yourself? (this may sound an odd question but in some cases the answer might be a resounding “No!”)
If yes, how should you present your defence? If not, what action should you take instead?
Do you need more time to prepare?
Do you counter with a grievance or some other action?
Could you be represented or accompanied at meetings and hearings?
What evidence should you gather?
How might you challenge the employer’s evidence?
How can you undermine the employer’s position?
Should you record the hearing? How?
Should you appeal?
What should you say or do to improve your prospects of a successful case later?
What outcome should you be pursuing?
What are your prospects of success in a claim?
How much might your case be worth?
If you have already been dismissed, panic not! Important questions are:

What’s really gone on here? Was this all about your conduct or was there a hidden agenda?
Can you turn a hidden agenda to your advantage?
Do you raise a grievance or some other counter-action?
Should you appeal?
What should you say or do to improve your prospects of a successful case later?
What outcome should you be pursuing?
What are your prospects?
How much might your case be worth?
How much time do you have before you become time-barred from issuing a claim?
Should you engage in the mandatory ACAS conciliation process (you have to do it, but there are pros and cons to actually conciliating vs. just getting the ACAS certificate to be able to proceed with a claim)?
A couple of these questions can be answered quite easily just by reading some of the information on our site. We recently wrote a blog piece about Unfair Dismissal from an employee’s perspective. However, many of these questions can only be answered by someone with the proper expertise who understands your case. We are more than happy to have an initial, no-obligation, conversation with you and to give you some free advice to point you in the right direction!

Let’s recap the basics

Often, you will need to have been employed for two years or more before you can claim unfair dismissal.  However, there are a lot of exceptions to this, and other angles which you can also use to bring yourself within the jurisdiction of the Employment Tribunal. For example, claims based on protected characteristics (sex, pregnancy, race, disability, sexual orientation, religion or belief, age etc.); family leave (maternity, paternity, adoption or parental leave); health and safety; Working Time Regulations issues; Sunday working; employee trustees/representatives; whistle blowing; and the assertion of various other statutory rights.

We estimate that we uncover additional claims which our clients didn’t think they even had in over 50% of our cases. Sometimes these can be worth much more than the claims our clients thought they had!

To point yourself in the right direction, just ask yourself these initial questions:

Do I think that the real reason my employer dismissed/is dismissing me is the reason they have put forward?
If yes, is the real reason connected with one of the following five potentially fair reasons:
my conduct;
my capability (health, performance, qualifications etc.);
redundancy;
the legality of my being employed (such as the right to work in the UK); or
some other really good business reason (lawyers call this ‘some other substantial reason’ or ‘SOSR’).
Did my employer go about things in a reasonable way? For a dismissal to be ‘fair’ for one of the five potentially fair reasons set out above, a proper disciplinary or consultative process needs to have taken place.
If your answers to these questions is Yes …

…we may still be able to help you. Employers frequently make mistakes when going through these internal procedures and we are very skilled in identifying those mistakes!

In misconduct cases, they frequently:

fail to carry out a good enough investigation;
get the allegations wrong or confused;
fail to give the employee a fair hearing;
prejudge the case; or
jump to conclusions which aren’t really sustainable on the evidence.
In capability cases, they frequently:

go through the process too quickly;
fail to give the employee a proper opportunity to improve;
fail to gather as much evidence as is reasonable to allow them to make a proper informed decision; or
fail to consider alternatives to dismissal.
In redundancy cases, they frequently:

fail to consult meaningfully or at all;
get the ‘pool’ of employees at risk wrong;
make mistakes in selection processes including weighting certain factors unfairly or being too subjective; or
fail to make reasonable efforts to find alternative employment.
In the other cases (lawfulness and ‘SOSR’), even though they might have a really good reason for dismissal, they fail to consult and engage with the employee sufficiently about the problem.  Therefore, even if there is a potentially fair reason for dismissal, a failure to follow a proper procedure may make it unfair. This means it is always worth getting getting some advice.

If the answer to any of the above questions is No …

… then you definitely need to get some advice as soon as possible. Please. In the event you don’t want to ask us, that’s fine. There are several places where you can get basic free employment law advice, for example your local Citizens Advice Bureau. Alternatively, drop us a line and let us try to help you. We are only one call or email away and we promise to get back to you within an hour or so at most.

Finally, we wish you the best of luck with whatever problems you have on your plate!

Paladin