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Your Money answers Your Questions: Unfair Dismissal – An Action Plan

Kit Klarenberg
Written By:
Kit Klarenberg

“Dear Your Money,

I’ve just been dismissed from my job, and feel it was totally unfair. Very little reason was given, beyond me ‘not living up to the internal culture’ – whatever that means! What can I do?” 

Ross, Uxbridge

First, it’s important to note from the outset that if you worked for your employer for less than two years, then you have no legal right to argue you have been dismissed unfairly. Once you’ve worked somewhere for two years, all number of rights and protections are afforded to you – “less than that,” says Ruth Badrick, partner at BDBF LLP, “and your employer can dismiss you for almost any reason – as long as it is not a discriminatory one, and you are not being targeted because you have ‘blown the whistle’.”

If you have worked somewhere for more than two years, however, your employer needs a fair, demonstrable reason – such as poor standards of work, or professional misconduct – to dismiss you. “Further to this,” says Ruth, “your employer has to act reasonably, and certainly should not dismiss you for a first offence – unless it is a particularly serious matter constituting gross misconduct or gross negligence.”

In addition to these safeguards, an employer is also obliged to follow a fair dismissal process, which varies according to the circumstances of a dismissal. “For example,” explains Ruth, “if you are accused of misconduct, you must be called to a disciplinary hearing, warned that you might be dismissed and given an opportunity to state your case.”

“If your dismissal relates to performance, you should be given an opportunity to improve,” Ruth continues. “A friendly but formal indication that your work is not up to par, followed by a reasonable period in which to recover.”

“In the event you are being made redundant, your employer must consult with you about the proposed redundancy, discuss ways to avoid it and the possibility of alternative employment.”

If your employer is considering disciplinary action or dismissal, you should be notified in advance, preferably via a letter setting out the complaint about your work, and arranging an official meeting to discuss the issue.  This letter should include full details about what they are saying you have done wrong, allowing you to prepare a response or an explanation before the meeting. You have a right to bring someone to the meeting with you (for instance a co-worker, or a trade union representative) and Ruth recommends exercising it.

After the meeting, your employer should send you an official letter outlining their decision, and what they plan to do, within a reasonable amount of time. If your employer chooses to dismiss you, your employer must give you a period of notice first, ideally proportionate to how long you’ve worked for them.

You could also appeal the dismissal directly to your employer. You aren’t obliged to do so immediately, but Ruth warns that if you later decide to appeal via an employment tribunal and are successful, your compensation might be reduced due to your failure to appeal straight away.

If you do appeal, you should be invited to a further meeting (a ‘hearing’) to discuss your appeal directly with your employer. Ruth advises you to “prepare thoroughly for the appeal hearing, and be ready to raise any and all concerns that you have about your dismissal.”

“At the meeting itself, take comprehensive and legible notes, and put forward any mitigating circumstances which might be relevant. For example, in a misconduct situation, your length of service, your clean disciplinary record, the fact that this was an isolated incident could help your case.”

After the hearing, you should receive written confirmation of your employer’s final decision. If your appeal is rejected, then do not give up hope. Furthermore, if your employer does not act according to these principles, they may well have acted unlawfully – and you can appeal your dismissal via an employment tribunal.

“Before doing so, you must contact the Advisory, Conciliation and Arbitration Service (ACAS) and begin the process of Early Conciliation,” advises Ruth, “Early Conciliation is a process which you are obliged to go through by law prior to bringing any claim at an Employment Tribunal.” You have within three months of the termination date to do so, but Ruth recommends doing it much sooner than that. Once your claim is filed, ACAS will then try and broker a deal between you and your employer – but your employer is under no obligation to agree to Early Conciliation.”

When discussing with ACAS what you’re seeking from your employer, bear in mind that compensation for unfair dismissal is capped at the lower of £78,335 or a year’s pay, and you have a duty to look for a new role while you wait for the process to begin. “Any compensation you receive will be proportionate to actual, demonstrable losses on your part – for example, if you find another job within two months of dismissal, your compensation will be capped at two months’ pay.”

If your employer refuses to conciliate, or ACAS is unable to broker a deal, you will be issued with an Early Conciliation certificate. “This is essentially the permission slip which allows you to issue a claim in an Employment Tribunal,” Ruth concludes. “You should make sure you issue your claim within one month of the date that you receive an Early Conciliation certificate.”

You may have to pay a fee to instigate an employment tribunal, but this can be reduced – or, indeed, waived outright – depending on your income.