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What you should do if you've been unfairly dismissed

What You Should Do If You've Been Unfairly Dismissed

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

HAVE YOU ACTUALLY BEEN DISMISSED?

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:

  • A letter which explains the reason(s) why the employer is considering taking disciplinary action against you.
  • A meeting to discuss the issue with you.
  • A formal disciplinary decision must be reached.
  • You must be given the opportunity to appeal this decision internally.

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.

WAS YOUR DISMISSAL 'UNFAIR' IN A LEGAL SENSE?

If you bring a claim for unfair dismissal, the employment tribunal will consider whether your dismissal was fair or unfairly by looking at:

  • The reason for your dismissal; and
  • Whether your employer acted reasonably in all the circumstances.

It is possible for an employer to dismiss fairly for five reasons:

Conduct;

Capability (which can include poor performance and ill health);

Redundancy;

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.

HAVE YOU APPEALED THE DISMISSAL INTERNALLY?

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.

ACAS EARLY CONCILIATION 

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. 

SUBMITTING A CLAIM TO THE EMPLOYMENT TRIBUNAL

A claim for unfair dismissal would need to be received by the tribunal by three months less one day from the date your employment terminated. Extra time will be allowed for engaging in the Acas early conciliation process, which broadly means that the clock is stopped when you refer the claim to Acas and starts again once you receive an early conciliation certificate to mark the end of the process. It is important that your claim is submitted within the deadline, as there are only very limited circumstances in which the employment tribunal will accept an unfair dismissal claim if it is submitted late.

MORE INFORMATION 

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

We have late night and Saturday appointments available and offer a free initial telephone consultation for all new employment law enquiries. You can book your free initial employment consultation using our online booking form or by calling your local office. This telephone appointment will allow you to explain the situation with an expert lawyer and discuss the best steps to minimise stress and delays.


 
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