Being dismissed is unpleasant and can damage your self-confidence. You may be entitled to compensation or to be re-employed or re-engaged. We are specialist Cambridge employment solicitors who will work with you to achieve the best outcome, including negotiating a reference. Dismissal is a problem that benefits from legal advice. Call Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk
Apart from compensation for unfair dismissal, your employer can also be liable for notice pay, and compensation for discrimination and whistleblowing among many potential claims.
Unfair Dismissal
If you have been employed for two years or more you have the right not to be unfairly dismissed. In a limited range of exceptions there is said to be “automatic unfair dismissal” where you do not need two years’ service to claim.
To dismiss fairly, an employer must:
1. have a fair reason for dismissal; and
2. follow proper procedures to ensure the dismissal is fair in all the circumstances.
Potentially fair reasons for dismissal include: lack of capability (poor performance or health), misconduct, redundancy, breach of statutory provisions, and “some other substantial reason”.
Even if the dismissal falls within one of these potentially fair reasons, the process of the dismissal must also be fair. An assessment of the process must be made, typically covering issues such as:
1. whether a reasonable investigation was conducted. (Misconduct Dismissals)
2. whether you were warned about your performance and given an opportunity to improve. (Capability Dismissals)
3. whether there was an objective and fair selection process, whether you were consulted, and whether alternative employment was considered. (Redundancies)
Automatic Unfair Dismissal
There are some reasons for dismissal that are automatically unfair even if you do not have two or more years’ service. Dismissal for any of these reasons entitles you to bring an Employment Tribunal claim for unfair dismissal. You do not have to show that the process was unfair.
Dismissal because you have a criminal conviction that is spent is automatically unfair.
Automatic unfair dismissal includes dismissal for exercising your rights to any of the following:
- a written statement of employment particulars
- an itemised pay statement
- a minimum notice period
- maternity, paternity or adoption leave
- time off for antenatal care
- parental leave
- time off for dependants
- request flexible working arrangements
- not to be discriminated against contrary to the Equality Act 2010
- guaranteed pay when work is not available
- time off for public duties (e.g. jury service)
- protection against unlawful deductions from wages
- remuneration during suspension on medical grounds
- refuse to do shop or betting work on a Sunday
- make a public interest disclosure or ‘blowing the whistle’ (whistleblowing).
Compensation
Compensation for unfair dismissal is the sum of a basic award and a compensatory award plus approximately £500 for what is known as “loss of statutory rights”.
The basic award is based on your age, length of service in complete years, and a weekly wage based on a statutory cap that changes annually.
The compensatory award based on your losses will take account of the time when you were unemployed following dismissal and your efforts to find another job. This is currently based on the lower of your gross annual salary and a statutory maximum.
ACAS Code
The ACAS Code of Practice on Discipline and Grievance Procedures (which can be downloaded from https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html) sets the minimum standard with which employers should comply. Failure to comply may be at an employer’s peril. While it is not legally binding, it is the benchmark standard by which Employment Tribunals frequently determine the reasonableness of employers’ conduct.
If your employer has unreasonably failed to comply with the ACAS Code, an Employment Tribunal can increase compensation by up to 25% if you succeed in a claim for unfair dismissal.
It is important to get advice from employment solicitors at an early stage. You need to know how best to deal with disciplinary and dismissal hearings. If you do not comply with the ACAS Code your compensation can be reduced by up to 25%. In any case, what you say and do will influence the outcome of any subsequent Employment Tribunal hearing.
Wrongful Dismissal
Wrongful dismissal is different from unfair dismissal. It arises where you have been dismissed and your employer has not paid you for your notice period. You can claim wrongful dismissal with other claims such as unfair dismissal.
Unless you are guilty of “gross misconduct” (see below), your employer must either allow you to work your notice or make a payment to cover that notice period. Even if you have been wrongfully dismissed (i.e. dismissed in breach of your contractual entitlements), you are under a duty to do your best to find alternative employment (to “mitigate” your loss). Your employer may reserve the right to make a payment in lieu of notice under your contract of employment. If so, you should receive a payment that reflects the length of your notice period: you will not be expected to work your notice period. This payment is taxable in the usual way.
Gross Misconduct
“Gross Misconduct” is not a precise term and some employers abuse it. Merely labelling something “gross misconduct” does not make it so. Often Employment Tribunals find that so called “gross misconduct” is nothing of the sort and the term has been used by an employer in an attempt to justify “summary dismissal”. Summary dismissal is instant dismissal of an employee without allowing them to work their notice period or paying them in lieu of notice.
Genuine gross misconduct is serious misconduct that entitles an employer to dismiss the employee summarily (immediately) without notice for a first offence rather than going through the process of giving warnings before finally dismissing.
The following are examples of obvious “gross misconduct”:
- Theft
- Sexual harassment
- Physical violence
- Serious bullying or harassment
- Deliberate damage to property
- Serious infringement of health and safety rules
- Serious negligence which causes or may cause loss
- Fraud
Redundancy
Redundancy is a potentially fair reason for dismissal.
Beware: unscrupulous employers commonly try to use “redundancy” as an inexpensive means of dismissal when there is not a genuine redundancy situation. Cases where the “redundant” person has shortly afterwards been replaced by a new employee are certainly not unknown. This dishonest practice is easy to address.
To satisfy the definition of redundancy, the dismissal must be related to the fact that:
1. your employer is ceasing to carry on its business or it is ceasing to carry it
on in your place of work; or
2. the requirements of the business to carry out the duties which you
performed have reduced or ceased.
If you have been continuously employed for two or more years before being made redundant you will be entitled to a statutory redundancy payment. This sum is based on age and length of service and calculated in the same way as the basic award for unfair dismissal. Some employers may have contractual policies that provide redundancy payments above the statutory amount.
If you are offered suitable alternative employment you may lose the right to a redundancy payment if you unreasonably refuse that offer. For the alternative employment to be deemed “suitable”, it would normally need to be at the same or similar level of salary and benefits, status and responsibility. You have to be given at least a four week trial period during which time you may decide (if reasonable) that you want to leave and accept the redundancy payment.
The ACAS Code of Practice does not apply to redundancy situations.
Constructive Dismissal
This is an unfair dismissal claim that arises when an employee resigns from his or her job because of a serious (“fundamental”) breakdown in their relationship with the employer. It is as if you have been forced to dismiss yourself so the dismissal is “constructive” rather than actual. Your employer has made the situation so intolerable that you feel that there is no option but to resign. Sometimes employers do not want to risk dismissing so they decide to put pressure on the employee to leave of his or her own accord. You should seek legal advice from a firm of employment solicitors before leaving your job.
The following situations where the employee resigned have been held to amount to constructive dismissal:
Imposing a salary reduction – Industrial Rubber Products v Gillon [1977]
Materially reducing benefits – French v Barclays Bank plc [1998]
Reducing an employee’s status – Lewis v Motorworld Garages Ltd [1985]
Changing an employee’s hours or shift patterns
Rudely or unjustly criticising an employee in front of others – Isle of Wight Tourist Board v Coombes [1976]
Failing to give an employee the necessary support to perform her duties properly – Associated Tyre Specialists (Eastern) Ltd v Waterhouse [1976]
Removing the most enjoyable or central aspect of an employee’s job if this reduces prestige or job satisfaction – Hilton v Shiner [2001]
Giving an employee no or a low salary rise or bonus out of all proportion to those of her colleagues without any justification – Clarke v Nomura International plc [2000]
Imposing new restrictive covenants on an employee without going through the proper procedure – Willow Oak Developments Ltd v Silverwood [2006]
Requiring an employee to relocate without giving reasonable notice – United Bank Ltd v Akhtar [1989]
Allowing a bullying or hostile environment to persist, or failure to investigate allegations of harassment – Bracebridge Engineering Ltd v Darby [1990]
Allowing non-trivial bullying and harassment of an employee by another employee – (1) Reed (2) Bull Information Systems Ltd v Steadman [1999]
Failing adequately to investigate a grievance – GAB Robins (UK) Ltd v Triggs [2008]
Apparent bias in conducting a grievance – Watson v University of Strathclyde [2011]
A senior executive acting in a high handed and aggressive way towards employees – Horkulak v Cantor Fitzgerald International [2004]
Accusing an employee without justification of inability to do his job – Courtaulds Northern Textile Ltd v Andrew [1979]
Suspending an employee (even pursuant to a contractual right) without reasonable and proper cause – Gogay v Hertfordshire County Council [2000]
Maintaining suspension of an employee even though the employer has already concluded that one of two charges against the employee is unfounded – Camden and Islington Mental Health and Social Care Trust v Atkinson [2007]
Giving an unjust and unmerited warning or other disciplinary sanction out of all proportion to the offence – Stanley Cole (Wainfleet) Ltd v Sheridan [2003]
Giving a bad reference without checking that it is fair and reasonable – TSB Bank plc v Harris [2000]
Requiring an employee to relocate without giving reasonable notice – United Bank Ltd v Akhtar [1989]
Imposing a disciplinary suspension without pay, unless the employer has the power to do so under the contract of employment
Laying off employees without pay, in the absence of a contractual provision allowing this – D&J McKenzie Ltd v Smith [1976]
Failing to give an employee necessary support to perform his duties and functions properly – Associated Tyre Specailists (Eastern) Limited v Waterhouse [1976]
Failing to cooperate with an employee in his attempts to achieve sales targets which allow him to obtain benefits under a bonus scheme – Takacs v Barclays Services Jersey Ltd [1976]
Failing to provide a satisfactory working environment to enable the employee to work, e.g. requiring the employee to work in a smoky atmosphere – Waltons & Morse v Dorrington [1977]
Requiring an employee to work in unsafe conditions – Marshall Specialist Vehicles Ltd v Osborne [2003]
Causing psychiatric damage by the volume and character of work – Walker v Northumberland County Council [1995]
Refusing, without reasonable and proper cause, to follow a doctor’s recommendation in a Statement of Fitness to Work (fit note)
Moving an employee from a hands on job to a managerial role – Land Securities Trillium Ltd v Thornley [2005]
Failing to pay full wages during an employee’s sickness absence when their employment contract did not permit this
Imposing new restrictive covenants on an employee without going through a proper procedure – Willow Oak Developments Ltd (trading as Windsor Recruitment) v Silverwood [2006]
Failing adequately to investigate a grievance – GAB Robbins (UK) Ltd v Triggs [2008]
Refusing to provide work where a significant proportion of an employee’s remuneration was based on commission
Not making reasonable adjustments to a disabled employee’s job which would allow him or her to continue working – Greenhof v Barnsley Metropolitan Council [2006]
Making public remarks about an employee which are highly damaging to his reputation – Clements v RDF Media Group Ltd [2008]
Discriminating against an employee by unreasonably refusing a woman’s request to work flexibly following the birth of her child – Shaw v CCL Ltd [2008]
Placing improper influence on a colleague to produce a lying witness statement in defence of the employee’s discrimination claims – Singh v Morlands Primary School [2013]
Failing to progress disciplinary and grievance processes fairly and promptly – Flexman v BG International Limited [2013]
Failing to provide an appeal against a grievance decision to be heard by a different manager from the one who made the original decision – Blackburn v Aldi Stores Ltd [2013]
Writing to an employee when she was on sick leave for work related stress to raise concerns that were not serious or urgent – Rawlinson v Brightside Group Limited [2015]
The above are examples from real Employment Tribunal cases of what may constitute constructive dismissal, but the facts of each case vary and you should seek legal advice from specialist employment solicitors such as Cambridge Legal Practice before assuming that your employer is acting unlawfully. The list is non-exhaustive. Many other situations may also amount to serious breaches of contract entitling an employee to resign and claim constructive dismissal.
Discriminatory Dismissal
Discrimination against an employee contrary to the Equality Act 2010 because of a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation) may be associated with dismissal. The employer responsible for discrimination may have to face claims for unfair dismissal and discrimination. Unlike compensation for unfair dismissal, compensation for discrimination is uncapped. As specialist employment solicitors, Cambridge Legal Practice can produce for you a schedule of loss setting out the value of your claim.
Limitation Periods
A limitation period is the period within which a claim must be brought. Failure to take action against your employer within the limitation period will almost certainly result in the Employment Tribunal being unable to hear your case.
You have 3 months less one day from the date of termination to bring a claim in an Employment Tribunal for unfair dismissal or for breach of contract as a result of a wrongful dismissal. An internal appeal does not extend the limitation period. Unscrupulous employers will deliberately delay proceedings in the hope that you will lose your rights by not bringing your claim in time. Watch out.
Employment Tribunals only have jurisdiction to consider breach of contract claims worth up to £25,000. Where a breach of contract claim exceeds that sum, it would need to be brought in the County or High Court, for which there is a 6 year limitation period from the date of the breach of contract. This enables you to issue a claim for wrongful dismissal outside the 3 month limitation period applicable to Employment Tribunals in the County Court or High Court if it is brought within 6 years of dismissal. This does not apply to unfair dismissal claims which must be brought within 3 months less one day.
You have 3 months less one day from the date of any discriminatory act (which may be the dismissal) to bring a discrimination claim in an Employment Tribunal. For example, if the last discriminatory act was on 5 May, the claim must be in by midnight on 4 August.
WARNING: Time limits can be complicated: you should take prompt legal advice from employment solicitors if you think you may have a potential claim.
If you are looking for legal advice from specialist employment solicitors in Cambridge, whether on dismissal or any employment law topic, call Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk
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