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Aim of this page
The aim of this page is to give you an overview of the legal remedies which may be available to you should you be dismissed by your employer.
The information contained is basic; if it doesn’t answer your questions, or you have any doubts about whether or not you should commence legal proceedings, we would recommend that you seek legal advice.
It’s part of our information on looking for and keeping work.
Why is this important?
The costs of taking your employer to an employment tribunal can be expensive and your likely level of winnings will usually only cover what you have lost. Therefore, it’s important that you think carefully about taking any form of legal action and seek proper legal advice.
Length of service and other requirements
The law requires that an employee work for an employer for a minimum period before they can claim unfair dismissal. If your employment started before 6 April 2012 then this period is one year. If your employment started on or after this date, then you must complete two years of uninterrupted service before you can made a claim.
If you do not meet the length of service requirement, then unless your situation comes within a statutory exception (for example, the right to maternity pay, or where you are a whistle blower), then you will have no right to claim unfair dismissal and should you do so, your employer will simply apply to have your case struck out. This does not necessarily mean that you should not seek legal advice, especially if you decide to appeal your dismissal using your employer’s internal procedures but, always make it clear to the adviser that you believe you may not meet the service requirement as this will significantly affect the advice you are given.
Unfair dismissal laws are only applicable to people working under a contract of employment, as opposed to a contract for services. As a rule, you will generally be an employee if:
- you are obliged to perform the work personally (you cannot send a substitute)
- if your employer is required to provide work (and pay you for it); and
- you are under the control of your employer (for example, you can’t turn up for work whenever you like and must do the work asked of you).
If you have any doubt about your employment status, then seek legal advice.
Importantly (and this may sound obvious), there must have been a dismissal. Generally, whether or not there has been a dismissal will be obvious. It is important that you know however, that a resignation can count as a dismissal. This is covered in more detail below.
Finally, different claims have different time periods within which you have to file a claim for it to be considered valid. The unfair dismissal time limit is three months from the date of dismissal and the same time frame applies to unpaid wage and discrimination cases. These are hard time limits and cases submitted late will only be accepted in exceptional circumstances (such as serious illness), so it is important to abide by the rules and get your claim in on time. This is one of the reasons why seeking legal advice at the first opportunity is so important; it can ensure a claim is brought properly. You may still be able to proceed in the County Court, but this brings a much greater risk of costs and is generally a more lengthy process, so it is far from an ideal option.
Was the dismissal fair?
The reason for dismissal is crucial in any unfair dismissal case and something that the tribunal will have to consider when deciding the issue of unfairness. The reason must be one that is fair. There are five ‘potentially fair’ reasons for dismissal:
- Poor performance
- That continuing the person’s employment would have led to the contravention of a statute
- Some other substantial reason (SOSR)
The first four are clear in meaning. The fifth one, SOSR, may seem vague; this is because it is a catchall provision that entitles the employment tribunal to consider the reason for dismissal and decide for itself whether that reason is capable of being lawful. Examples of reasons accepted under this heading include:
- The imposition of a prison sentence
- Necessary re-organisation of a business
- That the person was employed as maternity/sickness cover
- A breakdown in the employment relationship
The list of reasons that have so far been considered as SOSR by tribunals is not exhaustive – an employer may come up with one that has never been used before.
It is open to a claimant to put forward an alternative reason for dismissal if he believes that the employer is being less than honest about his motivation. For example, if you believe that an employer is taking advantage of an incident of misconduct to justify a dismissal that is really based on an unlawful reason, or dismissing you because of your conviction but claiming officially that you are not up to the job. If you believe this is the case, then you should put it to the tribunal, but evidence will be required in order to convince them, so go prepared. It is worth noting for these purposes that your employer bears the burden of proving that the reason given was the true motivation for the dismissal.
Did the employer act reasonably?
Even if the reason is capable of being fair, this does not automatically make it so. The tribunal must also consider whether an employer has acted fairly in dismissing for that reason. The tribunal will consider whether an employer has acted reasonably in all the circumstances of the case. For example, the size of an employer is relevant to how practical alternatives to dismissal would have been and the nature of the work done may make certain acts of misconduct worse in context than when viewed in isolation.
It is important to realise that ‘unfair’ does not carry its normal, everyday meaning in this context. It has a specific legal meaning and you should bear this in mind when considering whether to make a complaint to the employment tribunal.
Indicators that a decision was unfair include:
- Failing to give an employee the chance to explain alleged misconduct
- Failing to provide adequate notice of a disciplinary hearing
- Failure to inform that a disciplinary process could result in dismissal
- Failure to permit an employee to be accompanied to a disciplinary by a fellow staff member or union representative, or to inform him of the right to do so
- Failing to give an employee the opportunity to improve his performance (in capacity cases)
- The decision being based on an unreasonable misapprehension of the facts
- Unreasonable delay in taking a decision or instigating disciplinary proceedings
- An over-reliance on irrelevant or improper factors
- A failure to follow basic procedures in coming to the decision, including a refusal to permit an internal appeal or properly investigate the situation that led to the dismissal
- A lack of an internal appeal process to a more senior manager
- An appeal being determined by someone with prior involvement in the matter
This is not an exhaustive list and the presence of one of these factors does not automatically generate a finding of unfair dismissal. Decisions in such cases usually turn on the facts peculiar to the individual case, and it is often difficult to know which way a tribunal will go until the evidence is placed before them. Because the specific factual evidence can be so influential, the importance of witness performance cannot be understated. If you do not make a convincing witness, or cannot sufficiently undermine the evidence given by your opponents, then you are going to struggle. Paper evidence is also important, so gather it as early as you can; at the tribunal you should endeavour to have an explanation for every piece of evidence the other side have that may appear unfavourable to you.
At the employment tribunal
Bringing a claim
If you are confident that you have a worthy claim and have sought legal advice confirming this, then the first thing you need to do is fill in a claim form. Unlike most court forms, this claim form can be completed online. You won’t be able to submit the form if you have missed out any mandatory sections; this is a particular advantage as an incomplete form will be rejected and the clock counting down to bar your claim will not stop running until a form is correctly submitted.
Once you’ve submitted your claim the other side will have 28 days to respond to your claim. In the unlikely event that they fail to do so within the 28 day period, then you win automatically and can obtain what is referred to as a ‘default judgement’. Don’t expect this to happen; you need to keep preparing your case as best you can.
Employment tribunals are supposed to be cheaper, faster and easier to understand than a normal court. They have been set up with the unrepresented claimant in mind; you do not need a lawyer to bring a claim and you can examine witnesses and make arguments in the employment tribunal yourself.
Use of convictions in evidence
The main way in which you will give evidence is on paper, via a witness statement that you will have prepared in advance. The tribunal panel will have read this before the hearing and you will not need to read it out or be asked questions about it by your representative.
However, you will have to be cross-examined, which means answering questions from the other side about your witness statement. Similarly, you will have the chance to question your employers’ witnesses, so that you can highlight any inconsistencies or errors in their statement.
There are some specific problems which could arise in the case of someone with a criminal record. Section 4 (1) of the Rehabilitation of Offenders Act provides that spent convictions should never be used as evidence in judicial proceedings and questions should not be asked that would elicit such information. This rule applies equally to employment tribunals. Therefore, in general terms, it would be wrong for questions to be asked or evidence given about a spent conviction. This can of course, cause problems for someone with a conviction bringing legal proceedings. There are two circumstances where this is likely to come up:
- Where the claim is based on the employee’s spent conviction (such as a dismissal following its being discovered)
- Where a witness on either side has a spent conviction.
In the first case, the employee can waive his right to conceal his conviction. Indeed, he would have little choice but to do so if he wanted to bring a case. It would be impossible to prove unfair dismissal in a case based on a spent conviction if the employment tribunal could not hear evidence that the conviction existed. The narrative of the case would not make sense and it would be almost impossible for the employment tribunal to come to a decision in the claimants favour. So, disclosure of the spent conviction could not, realistically, be avoided in such circumstances. This means that the potential claimant must make a decision; are they more interested in keeping their conviction out of the public domain, or in bringing a claim? It is unlikely you will be able to do both. Employers will know this, so settling a claim out of court could also be more difficult to accomplish as a result.
As for the second scenario, this is a difficult issue. From a claimants point of view, a witness’ convictions would not necessarily be relevant, even if the claimant knew about them. It is possible that in a dismissal claim, where another person with a similar spent conviction was uncovered and no disciplinary action was taken, then the contrasting treatment would be relevant. Although such evidence could prove crucial in proving your case, you are as bound by the bar on discussing the conviction as the other side and should not ask questions about it of any witness who is protected by the ROA. To compensate, you could ask questions of your employer of a more general nature, without naming anyone. Similarly, if you call a witness with a spent conviction, the other side should not ask questions about it, even if it seems relevant. Of course, when questioning someone with a spent conviction, it is unlikely you will be aware of his/her status in the first place, but these points are worth bearing in mind should the issue arise.
With regard to unspent convictions, there is nothing to stop either side referring to a person’s unspent convictions, if they meet the general requirements applied to all evidence, which is relevant to a particular issue in the case. It would be inappropriate for either side to raise the issue of a conviction unless it has a direct bearing on one of the issues in dispute; employers should not raise a conviction where it is irrelevant. For example, if you are bringing a claim for unpaid wages, your conviction would likely have nothing to do with your claim and an employer should not raise it in an attempt to smear you in front of the employment tribunal. Even if they did so, it is unlikely that the tribunal members would fall for such a tactic.
The rules on compensation are complex however generally, you will only be paid what you have lost, because of the decision that has been declared unlawful. In an unfair dismissal case, this is likely to include:
- The wages that you should have earned from the date of dismissal up until the hearing date (less any wages earned in new employment)
- A certain amount of lost wages for a period of time after the hearing date
- The cost of looking for new employment
Even if you are entitled to the above losses, how much of this you get depends on two key factors: how much of your dismissal was your fault and what you’ve done to make sure your losses are as small as possible.
The cost of bringing a claim
You may have to pay a fee to make a claim. The amount depends on the type of case and your personal circumstances. In almost all cases, each side is responsible for paying their own costs and not responsible for those of their opponents, even if they lose. Given that it is difficult to get the other side to fund your legal team should you win, you may want to think twice about hiring a legal representative. Some will offer an initial free consultation with no obligation and some will offer a no win no fee arrangement. However, employment litigants are not eligible for legal aid, regardless of their income, it is not an area of law that is deemed worthy of funding.
For this reason you would need to pay for a lawyer. They don’t come cheap and the odd news report of someone suing their employer for huge sums of money is misleading, these are the exception, not the norm. The money for your lawyer will have to come out of your winnings, which may make the whole process hardly worth the effort, given that the average award for unfair dismissal is less than £5,000. That’s not to say that a lawyer should be avoided, it is merely a warning that you should think hard about the costs of their assistance, especially where your case turns on a simple set of facts.
There are organisations such as the Free Representation Unit and certain law centres that provide free legal assistance, but you can’t access FRU directly; a CAB or law centre must refer you.
Trade Unions, if you belong to one, can be a useful resource in such circumstances. However, membership is not a guarantee of them sending a representative to court with you. The best option is to get your union representative involved as early as possible.
Finally, if you have some, it might be worth consulting your home insurance documents. Some home insurance plans cover legal advice and this does not necessarily need to relate to matters involving your home.
Litigants in person regularly win cases against their employers; you are not going to lose just because you are lacking a lawyer, even if the other side has one. Just go prepared, be calm and take your time.
Below you will find links to useful websites relating to this page. More specific details including addresses and telephone numbers of some of the organisations listed below can be found here.
- For practical information – More information on spent and unspent convictions and employment law
- To discuss this issue with others – Read and share your experiences on our online forum
- Questions – If you have any questions about this, you can contact our helpline
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