Claims for unfair dismissal are amongst the most common brought to employment tribunals. If you are considering bringing a claim for unfair dismissal to an employment tribunal then you may wish to call our legal helpline on [phonenumber] for free, no obligation advice.
Is there a Deadline for Presenting an Unfair Dismissal Claim to a Tribunal?
It is worth noting that you must present a claim for unfair dismissal to a tribunal within three months (three months less one day) of having been dismissed.
Mr T is unfairly dismissed on the 5th November. In order to meet the deadline he must issue his claim to the tribunal by 4th February.
Length of Service
Anyone who commenced work after April 6th 2012 must have worked for their employer for two years in order to bring an unfair dismissal claim to a tribunal.
When can an employer dismiss you?
There are six potentially fair reasons that an employer can rely upon when dismissing an employee.
1. Capability and performance
This can be broken down into three sections.
An employee may prove to be inadequately qualified to perform their role. An employer should offer training to help an employee improve his performance.
This might be a serious one off incident causing serious financial loss to the employer or a catalogue of incidents. It might be that they are failing to meet reasonable targets and failing to improve once given a warning and the opportunity to do so.
If an employee is continually absent from work through illness or injury and the employer has taken steps to find alternative work but nothing proves suitable then the employer may, having gone through the appropriate procedures, dismiss the employee. In the case of somebody with a long-term mental or health impairment which amounts to a disability the employers must be cautious not to fall foul of disability discrimination legislation.
This category is intended to cover problems such as drunkenness and drug taking; theft; fraud; swearing; insubordination; assault; absenteeism and unauthorised leave. Effectively serious one off incidents or a catalogue of similar incidents amounting to poor conduct. An increasingly common reason cited by employers is a breakdown in trust and confidence.
An employee is only redundant is he becomes surplus to requirements. If the reason for the redundancy is not genuine; or the reason is automatically unfair (such as selecting a pregnant woman for redundancy; or if the employer has failed to act fairly in the selection process the the dismissal would be unfair.
5. Statutory illegality
This is relatively rare and only connected to cases when it would be illegal to continue to employ someone. For example a doctor who has been struck off or a person who does not have permission to work in the UK.
6. Some other substantial reason
This is a complex and catch all reason for dismissal. It requires, under s.98(1)(b) of the Employment Rights Act 1996, the existence of ”some other substantial reason of a kind to justify the dismissal of an employee holding the position which the employee held” . It is considered by many to be heavily weighted in favour of the employer.
How a Tribunal Considers Fairness in an Unfair Dismissal Case
Having established that a dismissal has occurred following one of the potentially fair reasons above the next step when taking a case for unfair dismissal to an employment tribunal is to establish whether the employer acted fairly when dismissing you.
Fairness is judged by ascertaining whether the employer acted reasonably or unreasonably in treating the reason that they have given for dismissing you as sufficient to justify a dismissal. In other words, was it fair to dismiss you and did they follow the correct procedure. The test for fairness is two-fold.
(i) whether the procedure followed was fair. Examples of things to look for when considering the fairness of the procedure that led to your dismissal are: was there a proper investigation, were you given the opportunity to take a colleague in to any meeting with you and did you have the opportunity of appealing your dismissal.
(ii) whether the reason to dismiss fell within the range of reasonable responses open to a reasonable employer.
If you think that you have been unfairly dismissed then please call [phonenumber] so that we can advise you about what steps to take to bring your unfair dismissal case to a tribunal.