JUSTICE GAP GUIDE: This is the second in a series of articles on employment law aimed at the public and specifically looking at the practice and procedure in the employment tribunal, writes Chris Hadrill.
The subject of unfair dismissal is both emotive and topical. A job not only provides wages to put food on the table – it is part of a person’s identity and a symbol of social status. Losing your job therefore not only affects a person’s income but it has extremely personal and social ramifications.
- You can read about Kevin Poulter on the government’s proposals to make it ‘easier for firms to hire staff while protecting basic labour rights’ on the JusticeGap HERE.
As the United Kingdom’s economy continues to limp along and the unemployment rate has increased from 5% in November 2007 to 8.3% in November 2011. The latest statistics show that two and a half million people are currently unemployed. As more people join the queue at the Job Centre, and understanding as to your rights in the workplace (particularly your rights relating to losing your job) becomes ever more important.
Following on from my first post, we will be looking at the law relating to dismissals and, in particular, when a dismissal may be ‘unfair’. In doing so we’ll analyse the following elements:
- What is ‘unfair dismissal’?
- How do I know if I’ve been fired?
- What makes a dismissal ‘unfair’?
- Examples of unfair dismissal
- What should I do if I think I’ve been unfairly dismissed?
What is unfair dismissal?
If you’re an employee with more than one year’s continuous service (two years for employees that commenced employment in April 2012) under the Employment Rights Act 1996 it is unlawful for your employer to dismiss you unfairly from your employment. For your employer to dismiss you fairly the decision to dismiss you must have been reasonable and they must have followed a fair procedure in deciding to dismiss you.
How do I know if I’ve been fired?
This is normally quite obvious – your employer will inform you verbally or in writing that your employment will end on a specified date. You can be dismissed in one of two manners:
- Without notice (‘summary dismissal’)
- With notice
Without notice dismissals
If you have done something that your employer considers is a fundamental breach of your contract of employment then they may dismiss you immediately and without notice. This is known as a ‘summary dismissal’. However, your conduct needs to have been particularly serious to justify a summary dismissal.
With notice dismissals
If summary dismissal doesn’t apply your employer will give you notice that your employment will end on a particular date. If the period of notice in your contract of employment is longer than the statutory minimum notice then you’ll work for the period of notice specified in your contract. If your contract doesn’t mention how much notice you’ll get (or is for a shorter period than the statutory minimum) then you’ll work for the appropriate statutory minimum notice period (for example, if you’ve worked more than one month but less than one year at your employer then you would be entitled to one week’s notice).
What makes a dismissal ‘unfair’?
Your employer must, in dismissing you:
- Dismiss you for a ‘potentially fair reason’
- Make a decision to dismiss you that is in the ‘reasonable range of responses’ in the circumstances; and
- Carry out a procedure in dismissing you that is procedurally fair
Dismissing you for a ‘potentially fair reason’
There are five ‘potentially fair’ reasons for dismissing you. Which of these applies depends on the circumstances of your case:
- Misconduct – if you have engaged in conduct which is inappropriate either inside or outside the workplace
- Incapacity – if your employer believes you are unable to perform your job to the required standard
- Redundancy – if your job is surplus to requirements because, for example, your employer no longer offers a particular service or is closing down a particular office that you work in
- Illegality – if you are unable to perform your job because to do so would be illegal i.e. if you’re an HGV driver and lose your licence
- Some other substantial reason – covers a wide range of circumstances
Making a decision to dismiss you that is in the ‘reasonable range of responses’
Your employer must make a decision to dismiss you that is in the ‘reasonable range of responses’ in the circumstances. For the decision to dismiss you to be reasonable the person making the decision must make a decision that:
- Is based on a fair investigation
- Is made honestly
- Is made genuinely
The reasonableness of the decision will be based on an analysis of the subjective state of mind of the person making the decision to dismiss at the time they decided to make that decision, based on the facts available to them. It is not an objective assessment (i.e. what the ‘reasonable man’ would think). However, if it subsequently comes to light that the decision wasn’t, for example, honest or genuine then the decision to dismiss will probably have been substantively unfair. This normally occurs if the outcome of the disciplinary hearing has been decided prior to the disciplinary being held, if the investigation or disciplinary was undertaken by a biased individual or if a fair investigation didn’t take place for other reasons.
Carrying out a procedure in dismissing you that is procedurally unfair
Your employer must carry out a fair procedure in dismissing you. There’s no rigid procedure that your employer has to adhere to in investigating you or conducting a disciplinary hearing but the process as a whole must be fair and reasonably thorough. Examples of procedural unfairness would include, among others, a failure to allow you to appeal or dismissing you for an offence when employees had been treated differently in the same circumstances in the past.
Examples of unfair dismissal
These are examples of cases that Redmans has dealt with in the past (with the names anonymised for obvious reasons):
- Mrs X, a disabled woman, was told that she was redundant because the amount of work that was being sent to her had decreased dramatically. Mrs X suspected that she was being dismissed because the equipment she had to use as a result of her disability annoyed her boss. She believed that her work was being redirected to a new employee at the company instead. Her case was settled.
- Mr Y, who was not of English nationality, was dismissed from his job without notice by his line manager (who was of Serbian nationality), ostensibly because he was late to work one day. However, Mr Y believed that he had in fact been dismissed because he wasn’t Serbian – a belief that was justified by the fact that all non-Serbian employees had been dismissed and persons of Serbian nationality or national origin employed instead. Mr Y succeeded in his claims for race discrimination and unfair dismissal at the Employment Tribunal.
What should I do if I think I’ve been unfairly dismissed?
- Talk to a family member or friend
- Educate yourself on the law relating to unfair dismissal
- Speak to ACAS
- Speak to a specialist employment lawyer
- Appeal your dismissal
- Have reference to the limitation date
Talk to a family member or friend
First of all, talk to an unbiased family member or friend. Go through the facts of your case and get their opinion on whether they think your dismissal was unfair. Make a list of all the things that you think were unfair and write down everything that’s happened to you (that’s relevant to your dismissal). It’s important to do that as memories fade quickly and you’ll need to be seen as a consistent and reliable witness at the Employment Tribunal (if it goes that far).
Educate yourself on the law relating to unfair dismissal
There are numerous online resources for learning about your employment rights. DirectGov, in particular, is very good at explaining the law in a concise and clear fashion. However, these resources are generally not as comprehensive as is necessary. We recommend that you take a trip to your local library to read a copy of Naomi Lewis’ Employment law: an adviser’s handbook. It’s excellent. If you want to take your unfair dismissal case to the Employment Tribunal by yourself then it’s also recommended that you obtain a copy of Cunningham & Reed’s Employment Tribunal Tactics and Precedents. These books are also available on Amazon and it is highly recommended that if you’re serious about taking your unfair dismissal case on yourself that you obtain a copy of each.
Speak to ACAS or go to your local Citizens Advice Bureau
Although ACAS’s employees aren’t specialist employment solicitors they offer impartial advice on what you should do in your situation. However, as stated above, they aren’t allowed to give legal advice.
The Citizens Advice Bureau is also excellent. Most CAB centres will have a specialist employment lawyer attending it that can give you advice. Search for your local centre and find out on what day the employment solicitor attends.
Speak to a specialist employment lawyer
It’s important that you speak to a specialist employment lawyer – not just any solicitor. A specialist will be able to give you expert advice in a short time frame. Have a search on Google for a firm of solicitors that are recommended and that will give you a free consultation on your case. A lot of firms also offer no win no fee agreements in unfair dismissal cases.
Appeal your dismissal
If you’re offered the opportunity to appeal your dismissal (and you should be) then it is recommended that you do so. A failure to do so may raise questions as to why you didn’t and may affect the compensation that you’re awarded (if you’re successful in the Employment Tribunal).
Have reference to the limitation date
The limitation date falls three months less one day from the date that your contract of employment was terminated. For example, if you were summarily dismissed on 2 July 2012 then your limitation date will be 1 October 2012. It’s important that you submit your Employment Tribunal claim form (it’s called an ‘ET1’) to the Employment Tribunal prior to this date. If you fail to do so then you’ve probably lost your right to make a claim for unfair dismissal (unless exceptional circumstances apply).
In the next article we’ll examine conduct dismissals and when a dismissal for misconduct may or may not be unfair.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award