Trading as Powell Eddison Solicitors 
Trading as Avery Walters Ellis Solicitors 

Unfair Dismissal 

What is Unfair Dismissal? 
Every employee who has the qualifying period of service has the right not to be unfairly dismissed. If there is a dismissal, the employer has to show that the reason or reasons for dismissal falls into one of the categories below: 
Capability or qualification grounds; 
Contravention of a Statute; 
Some other substantial reason -i.e. any reason that does not fall within the above reasons 
Unless an employer can prove one (or more) of the above fair reasons for dismissal, then your dismissal will be deemed to have been unfair. 
Even if an employer does prove that the dismissal comes under one of the above categories, it is still up to the Employment Tribunal to decide whether the dismissal was fair or unfair. The tribunal will need to decide whether the decision to dismiss was reasonable. 
Your employer, for example, may have had grounds for dismissing you because of your performance or conduct, but that does not mean they had to take this step. If a tribunal believes that no reasonable employer would have dismissed an employee in the same circumstances, then the dismissal will be unfair. In making its decision, the Tribunal will take into account the size and administrative resources of your employer. 
Even if there is a justified reason to dismiss you, the dismissal will still be unfair if your employer has not followed a correct process. This could be, for instance, where your employer has not followed a proper consulation or selection process in a redundancy situation. You should note, however, that your compensation can be reduced even assuming you win an unfair dismissal case if your employer can show that had they followed a correct process, the decision to dismiss would still have been the same. 
Another example could be where your employer has not carried out a proper investigation following a gross misconduct dismissal. The Tribunal will also take into account whether or not the employer followed the recommended ACAS Code of Practice on disciplinary procedures as failure to do so could also render the dismissal unfair. 
Automatically unfair dismissal 
A dismissal will be ‘automatically unfair’ in certain circumstances. These include:- 
Where you are dismissed by reason of a business transfer (you are protected under the TUPE regulations). 
Protective Disclosure often called Whistleblowing 
If the dismissal was connected with a health and safety reason that you became aware of; 
Where you have asserted a statutory employment right (such as maternity or paternity leave/pay; 
Where you have taken part in Trade Union activities. 
Am I entitled to claim? 
Employees are protected from being unfairly dismissed, as long as they have been employed for at least 2 years. There are limited exceptions where this time limit does not apply, for example, where the dismissal is automatically unfair as set out above, or where the claim involves some form of discrimination. 
Compensation for Unfair Dismissal is calculated as follows: 
Basic Award 
The basic award is a statutory award that involves multiplying the relevant factors of the length of continuous service (up to a maximum of 20 years), your age and a week’s pay (as at the effective date of termination) as follows: 
One and a half weeks’ pay for each year of employment after age 41; 
One week’s pay for each year of employment between ages 22 and 40; 
Half a week’s pay for each year of employment under the age of 22. 
The weekly pay which will be used to work out the redundancy payment will usually be your normal weekly gross pay at the time you were dismissed up to the maximum limit which is £475.00 as from 6th April 2015. A week’s pay does not usually include overtime pay. The maximum basic award payment you can receive is £14,250 from 6th April 2015 and changes yearly. 
Compensatory Award 
The losses need to have arisen as a consequence of the unfair dismissal, as a result of your employer’s action. 
The main heads of losses that you can claim are: 
loss of wages; 
loss of future wages; 
loss of statutory rights (it takes 2 years before you have unfair dismissal protection, or you can qualify for a redundancy payment); 
loss of pension. 
The maximum amount that you can be awarded as compensation for Unfair Dismissal is presently the statutory cap of £78,335, or 52 weeks gross salary whichever is the lower. This is in addition to the basic award which can be ordered by the Tribunal of up to a maximum of £14,250. These figures are correct as at 2015. 
In some cases, there is no cap on the compensation that can be awarded. These include cases of discimination and whistleblowing. Unfair Dismissal is a vast area and each case is determined on its facts. You should obtain professional advice as soon as possible if you think you have a claim. 
Andrew Parascandolo 
Employment Solicitor 


Phone: 01423 564551 
Email: ap@powell-eddison.co.uk 
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