Bringing a claim for unfair dismissal
You must normally have been working with your employer continuously for a year before you can bring a claim for unfair dismissal. There are some special cases where this time limit does not apply. These are known as ‘automatic unfair dismissal’ (see below).
If you bring a case, your employer must prove that your dismissal was for a ‘fair’ reason and that they used a fair procedure in deciding to dismiss you. For example, if you were dismissed for misconduct, your employer must normally show that they conducted a reasonable investigation and held a proper disciplinary hearing to give you the chance to put across your case.
In some circumstances you are automatically considered to have been unfairly dismissed, no matter how long you have been working for that employer. Examples of automatic unfair dismissal include where you are dismissed for:
- requesting a written statement of your terms of employment;
- being pregnant or having a child;
- trying to enforce a legal right;
- taking action over a health and safety issue;
- refusing to work on a Sunday;
- being a trade union member;
- ‘blowing the whistle’ on a matter of public concern at work; or
- taking part in lawfully organised official industrial action.
If you’ve been unfairly dismissed, you can apply to an employment tribunal for:
- ‘reinstatement’. This means making your employer give you your job back, with compensation for money you have lost since you were dismissed; or
- ‘re-engagement’. This means making your employer give you a similar job to the one you were dismissed from, with compensation for the money you have lost since you were dismissed; or
- compensation.
If you ask for reinstatement or re-engagement, the tribunal will consider whether this is reasonable and practical. Your employer can refuse to reinstate or re-engage you if they believe this would be unreasonable – for example, if trust and confidence between you and your employer have completely broken down. If your employer cannot show it would be unreasonable to take you back, but they still refuse to do so, the tribunal may award you extra compensation.
In practice, employment tribunals rarely force employers to reinstate or re-engage people. If you lose your claim for reinstatement or re-engagement, you may still receive compensation.
Once you are dismissed, you make a claim for unfair dismissal to the employment tribunal by filling in an application form called an ET1 and sending it to the employment tribunal. From the day you are dismissed, you have a maximum of three months minus one day to make this claim.
The ET1 form is available from:
- Jobcentres;
- local law centres;
- Citizens Advice Bureaux; and
- the employment tribunal website (see ‘Further help’ below).
You must use the current ET1 form for all tribunal applications, complete all the sections and provide all the information the tribunal needs. If you use the wrong form or you don’t give the information the tribunal asks for, the tribunal will not look at your claim.
When the tribunal has received your application, it will send a copy to your employer. Your employer must then send back another form (called an ET3) within 28 days, giving their side of the story.
When you send your claim, the tribunal will assign an officer from the Advisory, Conciliation and Arbitration Service (Acas) to your case (see ‘Further help’ below for contact details). The Acas officer will look at the case impartially (without taking sides) and will try and get you and your employer to agree a settlement.
If the Acas officer cannot get you and your employer to agree, you will have to go to a tribunal hearing.
An employment tribunal gives you and your employer the chance to give your sides of the story and to present evidence from witnesses.
The tribunal is made up of a chairman and two independent people. It is less formal than a court and you don’t need a solicitor to represent you. You can present your own case or you can get someone else, such as a trade union official, to present your case for you.
The tribunal is unlikely to make you pay your employer’s costs for defending (arguing against) your claim even if you lose. Similarly, if you win, the tribunal is unlikely to make your employer pay your costs for bringing the claim (such as the cost of copying documents or getting the advice of a solicitor). You should be prepared to pay these costs yourself.
Compensation for unfair dismissal has two parts:
- a ‘basic award’, related to your age and length of service; and
- a ‘compensatory award’ to make up for any money you have lost.
If you win an unfair dismissal claim, you will be entitled to at least a ‘basic award’ in compensation, unless you have been employed for less than a year or if you have already received a redundancy payment.
This is based on your age and how long you have been working for your employer. You can claim a certain amount, related to your weekly pay, for each full year you have worked up to a maximum of 20 years:
- half a week’s pay for each year worked if you are under 22;
- one week’s pay for each year worked between your 22nd and 41st birthdays; and
- one-and-a-half week’s pay for each year worked after your 41st birthday.
You cannot claim for wages above a maximum, currently £450 a week (as of February 2013). This means that the maximum amounts in practice are between £225 (half of £450) per year worked if you are under 22 and £675 (1.5 times £450) per year if you are 41 or over.
This is set by the employment tribunal and is meant to compensate you for money you have lost. The maximum is currently £74,200 (as of 1st February 2013). But if you were dismissed for reasons to do with health and safety or whistleblowing, there is no limit to how much you can be awarded.
An employment tribunal can reduce the amount of compensation payable in certain circumstances. So, for example, if you have been unfairly dismissed, you may only get the full rate of compensation if you have tried to reduce your loss by looking for (and taking) a suitable new job.
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- Further help with employment law
- Source:
- Community Legal Advice
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