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Being dismissed from your job or position is a traumatic experience for anyone, and it can be all the worse if you feel the dismissal was unfair or undeserved.
This guide will take you through the steps you'll need to follow to get the best possible resolution:
1. Have you been 'dismissed'?
2. Was your dismissal legally 'unfair'?
3. Appeal the decision through your employer's internal systems
4. Formally seek early conciliation
5. Submitting a claim at the Employment Tribunal
Sometimes this is obvious, but most companies have a formal process they have to follow to dismiss an employee, and it is important to know exactly where in the process you are. The process will vary from employer to employer and the reasons for your dismissal, but usually include these steps at a minimum in a conduct dismissal:
You cannot typically bring a claim for unfair dismissal or even appeal that dismissal internally if it hasn't yet occurred. There is one important exception to that rule, though:
If your employer has breached their employment contract with you, causing you to resign, this could be considered 'constructive dismissal' by employment tribunals and the courts. If so, you might be able to claim for unfair dismissal even if you were not formally dismissed. Of course, you should seek expert advice if you think this might be the case.
If you bring a claim for unfair dismissal, the employment tribunal will consider whether your dismissal was fair or unfairly by looking at:
It is possible for an employer to dismiss fairly for five reasons:
Capability (which can include poor performance and ill health);
Breach of a statutory requirement; and
"Some other substantial reason".
If the employer can show that the dismissal was for one of those reasons, the tribunal will consider whether the employer has followed a fair procedure and whether it was reasonable for the employer to dismiss for one of that reason, taking into account all the circumstances including the size and administrative resources of the business. However, employers are usually given a certain latitude, and tribunals recognise that there will be a "range of reasonable responses" to a given set of circumstances. There is no specific list, allowing tribunals to look at the entire circumstances of your employment and how it ended.
Again, you'll want to discuss these factors with a solicitor or other expert if you think your dismissal was unfair.
Certain reasons for dismissal are automatically considered unfair, and few employers will list them as the 'official' reason for dismissal. There are some circumstances in which a dismissal will be automatically unfair. These include the employee taking certain types of family leave, their trade union status, their political affiliation and whistleblowing. A complete list can be found here.
Many employers will substitute a false reason when dismissing someone for an unfair reason. If you can prove that this was the case, the dismissal can still be considered unfair.
Your employer is expected to provide a system for you to appeal disciplinary decisions you feel are unfair. You should begin the process as defined by your employer in their disciplinary procedures. If they do not have formal procedures for this, you should begin by sending them a letter which does the following:
Says clearly that you are appealing their decision to dismiss you, and
Explains why you feel the decision was wrong or unfair.
Your employer is required to set a meeting discussing your appeal with you. You have the right to attend this meeting with a union representative or a colleague to advise you if one is available.
You do not absolutely have to appeal your dismissal in order to take the matter to Acas or a tribunal, but failing to do so could harm your case. There can, however, be tactical reasons not to appeal the decision. Again, you are urged to seek specialist professional advice.
You must contact Acas (the Advisory Conciliation and Arbitration Service) by telephone or via an online form to begin early conciliation.
An Acas conciliation officer will contact you, at which stage you can decide whether you wish to participate in early conciliation. Acas will not contact your employer unless you decide you wish to go ahead. If you decide you do not wish to go ahead with early conciliation, or you go ahead but the process is ultimately unsuccessful, Acas will send you an early conciliation certificate which will contain your unique early conciliation number. You should keep this in a safe place because you will need to enter the number onto your claim form if you decide to issue proceedings in the employment tribunal.
For legal advice on unfair dismissal claims, Pinney Talfourd are here to help. We have a dedicated team of specialist employment lawyers based in offices across Essex and London