Q: What is an automatically unfair dismissal?
There are particular dismissals that are classed as automatically unfair. This means that the employee just has to show that the dismissal was for one of the following reasons:
- Membership (or non membership) of a trade union or for trade union activities
- Health and safety
- Asserting certain statutory employment rights
- When the employee’s work is transferred to another employer, under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE)
- Refusing to forego a right under the Working Time Regulations
- Seeking to enforce rights under the National Minimum Wage Act
- Making a protected disclosure under the whistle blowing legislation
- Trying to obtain (or prevent) recognition of an independent trade union
- Seeking to exercise the right to be accompanied at a grievance or disciplinary hearing
- Taking part in lawful industrial action
- In connection with the employee’s rights with regard to parental, paternity or adoption leave, time off for looking after dependants, maternity leave or the right to ask to work flexibly
- Taking action in connection with part-time workers’ or fixed-term workers’ rights
- Refusal by a shop worker to work on Sunday
- Connected with an employee’s function as a pension fund trustee
- In breach of the Information and Consultation Regulations 2004
Q: When is a dismissal fair?
An employer can normally fairly dismiss an employee for misconduct at work, lack of capability (or qualifications) to do the job, valid redundancy, a statutory requirement or some other substantial reason.
It is advisable to seek legal advice even if you have been dismissed for one of the reasons listed above as an employer must also follow a reasonable procedure as set out by the ACAS code of practice and established employment law.
Q: What about strikes and lock outs?
To be protected against unfair dismissal in connection with a strike or lockout, one of the following conditions needs to be fulfilled:
- The dismissal was within 12 weeks of the start of the protected industrial action
- The dismissal took place more than 12 weeks after the start of the protected industrial action and the employee had ceased taking part in it within the 12 week period.
- The dismissal took place more than 12 weeks after the start of the protected industrial action, the employee had continued to take part in that industrial action but the employer had failed to take such procedural steps as would have been reasonable to resolve the dispute.
There is also a right to bring a claim for unfair dismissal if all or some employees are dismissed during an official strike or lockout but only a selected few are re-engaged within three months.
Q: What can happen if an employment tribunal finds in favour of the employee?
If an Employment Tribunal is won by the employee the maximum compensation award currently is set at £72,300. However the compensation amount usually reflects the salary of the employee so only very high earners would receive the maximum amount. Most tribunals will award for loss of earnings plus a limited amount for future loss.
- In rare cases reinstatement may happen with the employee getting their job back with no loss of money or security
- In rare cases engagement will happen to get the employee another job with the same employer
- Compensation is what normally happens if an employee wins a tribunal. A basic award is calculated in a similar way to a redundancy plus a compensatory award to compensate the employee for the financial losses incurred as a result of the dismissal.
If you would like to find out about making an unfair dismissal claim call our friendly legal team on 0800 298 9690 or alternatively fill in the Claim Now form to the right of this screen and we will call you back.