One of the key aspects of employment law is to encourage employers to adhere to formal disciplinary procedures and for employees to use the grievance procedures wherever appropriate.
A dismissal is when your employer ends your employment, with or without notice, either by not renewing your contract, or through their conduct.
An unfair dismissal is when you have been dismissed by your employer for reasons other than your:
- A statutory duty or restriction that prohibited your employment from being continued
- Some other substantial reason
If you started before 6 April 2012, then you need to have been employed by your employer for only one year before you can claim unfair dismissal. There are situations where the one year qualifying period does not apply, mainly for automatically unfair dismissals such as a dismissal relating to pregnancy, health and safety or paternity leave
If you started your new employment after 6 April 2012, then you need to have been employed by your new employer for two years before you can claim unfair dismissal however, as above there are circumstances where this time limit does not apply.
Not all dismissals are unfair. However, your employer has to prove to the Employment Tribunal that your dismissal was fair and within reason. A fair reason may be conduct, capability, redundancy, retirement or some other substantial reason. The employer must show that they have followed their own procedures and that their decision was a reasonable one in the circumstances.
The success of your claim does not rest on the issue of breach of contract. The tribunal looks instead into whether or not there was a fair reason for dismissal and at the reasonableness of the employer’s actions.
The remedy for unfair dismissal includes a basic award in addition to compensation. Alternatively, re-engagement or re-instatement may be ordered.
Wrongful dismissal is when your employer dismisses you in breach of the terms of your contract. An employer may dismiss you without giving the notice agreed in your contract or they dismiss without carrying out the proper procedure which has been set out in the contract. You will have a claim for damages if your employer has dismissed you in breach of contract. A claim for wrongful dismissal can be brought in the civil courts or an employment tribunal depending on your individual circumstances.
Should you wish to make a claim against your employer, we will advise you on the merits of your claim. It is important for you to know that there are strict time limits in bringing an employment claim. The majority of employment claims must be presented at the Tribunal within three months. By law, any employee thinking of making a claim at the Employment Tribunal must first notify ACAS with details of the claim. ACAS will then attempt a conciliation between you and your employer. Failure from your employer to comply with ACAS’s Code of Practice on disciplinary and grievance procedures can increase your compensation by up to 25%, if you succeed in your claim. If the employee is responsible for the failure then an Employment Tribunal may reduce compensation by up to 25%.
Throughout the process we will advise you in relation to any negotiated proposals made and the merits of accepting an offer in settlement rather than proceeding to trial.
However, if a settlement cannot be reached we can assist with lodging Form ET1 at the Employment Tribunal. Your employer will be provided with a copy and will have 28 days to respond. Your matter will then be listed for a hearing at the relevant Tribunal.
At Chris Alexander Solicitors, our services for unfair / wrongful dismissal claims include the following:
- Taking your initial instructions, perusing your documents and advising you on the merits and likely compensation
- Negotiation / pre-claim conciliation through ACAS to explore whether a settlement can be reached
- Preparing claim form ET1 and Grounds of Claim setting out your case
- Preparing the response when a claim has been made against you
- Reviewing and advising on the claim or the response from the other party
- Exploring settlement and negotiating settlement throughout the process
- Preparing or considering a Schedule of Loss
- Preparing for (and attending) Case Management Hearing
- Exchanging List of Documents and copies with the other party
- Taking witness statements and drafting statements
- Preparing the bundle of documents for the Final Hearing
- Reviewing and advising on the other party’s witness statements
- Preparation and attendance at Final Hearing, including preparing instructions to the barrister
The time frame from taking your initial instructions to the final resolution of your matter depends largely on the stage at which your case is resolved. If a settlement is reached during pre-claim conciliation/negotiation, your case is likely to take 3-6 weeks. If your claim proceeds to a Final Hearing, your case is likely to take 9-12 months.
This time frame is an estimate and may change should any unforeseen complexities arise. We will always inform and provide you with a revised estimate. There may be periods when tribunals take longer in dealing with cases because of limited availability of judges or complexity of the case.