At the start of the employment relationship, it rarely crosses people’s minds that relations may turn sour leading to possible dismissal. If you feel that your employment has been terminated on unreasonable grounds, or you have felt forced to resign as a result of your employer’s actions, we are here to help.
In order for an employee to bring a claim for unfair dismissal or constructive unfair dismissal, you need the requisite two years’ service unless you can argue one of the exemptions applies e.g. if they are making a protected disclosure (whistleblowing).
Reasons for dismissal
In order for a dismissal to be fair, it needs to be both procedurally and substantively fair. There also needs to be one of the following genuine reasons for the dismissal:
- Conduct covers misconduct and also gross misconduct.
- Capability includes ill health and performance.
- Statutory legality e.g. a driver loses his driving licence and is therefore legally unable to carry out the role.
- SOSR which is the “catch all” category which covers issues such as personality clashes, breakdowns in trust and confidence etc.
The burden of proof in respect of an unfair dismissal claim rests with the employer to show that they had a fair reason to dismiss, and as such they need to show that they have followed a fair process in terms of inviting you to a disciplinary meeting (previously carrying out any investigation if required), in giving you the right to be accompanied, holding a meeting, providing a response and then offering the right of appeal.
In light of the above, the employer will need to determine whether any dismissal is within the band of reasonable responses or whether it is more reasonable to provide a lesser sanction. At this point factors such as length of service and other mitigating factors, will all come into play.
In terms of constructive unfair dismissal the burden is upon the employee to show that the employer has fundamentally breached their contract of employment in the same way. This is a high burden to pass, and we would always recommend you seek legal advice if you are considering resigning in circumstances such as these.
Compensation for unfair dismissal
Basic award – this is based on age, length of service and gross weekly pay.
Compensatory award – this is effectively loss of earnings and other benefits including pension, bonus etc from the date of dismissal to the date of any hearing. However, employees have an obligation to mitigate their loss by effectively looking to secure alternative work.
How can we help?
Our track record in successfully bringing claims brought against employers means that we can advise you at an early stage of the process of the likely outcome and help you achieve a satisfactory resolution. We can assist in all aspects in preparing any case for a hearing, from cradle to grave, including organising the evidence, preparing the witness statements and ensuring you know what to expect from your day at the hearing. We also have the ability to handle the advocacy in-house or alternatively to recommend one of a number of trusted specialist employment barristers, whichever you prefer.