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UNFAIR DISMISSAL

For most of us, work is key to our sense of identity and self worth. If things go wrong, it can have a devastating effect on us both financially and emotionally. We help employees and employers alike by giving realistic, practical and jargon-free advice to get the best result available.

Employers often make mistakes during the disciplinary process and expose themselves to claims that they would otherwise have avoided. It is essential to follow the statutory dismissal procedure (Employment Act 2002 (Dispute Resolution) Regulations 2004) but even when employers do they are not always safe. It’s vital to get expert legal advice.

How much will the Employee receive if successful?
The calculation of losses is not a straight forward matter. This is simply a summary of the kind of issues that may be covered in a compensatory award made by a Tribunal. There are circumstances in which the Tribunal may reduce elements of the award by up to 100% in exceptional circumstances for example if the employee contributed to his/her own dismissal or if s/he would have been dismissed anyway even if a fair procedure had been followed.

The main purpose of an award of damages is to put the employee back in the position that he or she would have been had s/he not been unfairly dismissed. This is the object of the Compensatory Award:

Compensatory Award:
The compensatory award compensates the employee for the loss of net earnings, benefits etc from the date of dismissal until the date that s/he finds suitable alternative employment. The employee will have to show what steps s/he has taken to find suitable alternative employment by producing letters, emails, application forms, rejection letters etc showing that /she has actually been actively looking for another job (rather than sitting at home waiting for the Tribunal to make it’s award).

This is likely to comprise of:
- Loss of net pay (after deductions of tax and national insurance) for the number of weeks the employee has been out of work to the date of the Tribunal Hearing.

- Loss of net pay (after deductions) from the hearing date until the date the employee is expected to have found suitable alternative employment (not normally more than 6 months)

- Loss of other benefits (for example health insurance etc) for the same period.

- Loss of pension rights (this can be difficult to calculate) for the same period.

- Costs associated with finding another job (such as travel, stationary etc)

- Loss of ‘statutory rights’ (normally up to £300). This recognises the fact that s/he will have to work in the new job for a year before getting statutory protection from unfair dismissal)

Compensatory awards for most people are not great, and are unlikely to approach the statutory cap (£56,800 rising to £58,400 from 1st February 2006 (reviewed annually)). Some older people may argue that they will effectively be out of work until their retirement date, but Tribunals are reluctant to accept such an argument without compelling evidence.

Basic Award:
The basic statutory award on unfair dismissal largely the same as a statutory redundancy payment. However entitlement arises after one year’s employment. This will be a week’s pay to a maximum of (£280 before tax, but from the 1st February 2006; £290 before tax (reviewed annually)) x full years worked x 1.5 for years worked over the age of 41. There’s also a slight variation for years worked under the age of 21.

Injury to Feelings:
Tribunals will not make an award of ‘injury to feelings’ in statutory claims of unfair dismissal. However awards for injury to feelings may be made for unlawful discrimination.

Statutory Uplift / Reduction in the Award:
If the employee has failed to i) cooperate in the statutory dismissal procedure or ii) failed to complete the statutory grievance procedure before issuing proceedings (other than in dismissal cases), the Tribunal will reduce the award by between 10% and 50%

Likewise if the employer failed to i) cooperate in the statutory grievance procedure or ii) follow the statutory dismissal procedure, the Tribunal will reduce the award by between 10% and 50%.

Time Limits:
Don’t forget, unfair dismissal claims generally have to be received by the Employment Tribunal no later than three months from the date dismissal. However if the internal appeal process has not completed by then, an extension of time will be available.

Reculver Solicitors is regulated by the Solicitors Regulatory Authority. Principal: James Carmody. Consultant: Carol Aylott. Serviced office. Meetings by appointment only.