Unfair Dismissal

No Win No Fee

We offer genuine no win no fee assistance in bringing claims to an employment tribunal.  There is no fee unless we obtain compensation for you and then our fee is 35% of that compensation including vat.


If you feel you may have a claim ring me for a free informal chat about it. Read more below and ring 0115 8525813

Unfair Dismissal

While an employee may feel that his or her dismissal wasn’t “fair” the tests applied by the Employment Tribunal are more strenuous.

Length of employment

To be able to start proceedings for unfair dismissal the employee must have been employed by the employer for 12 months continuously. This increased to two years for those who started work in or after April 2012.  There are some specific exceptions to this. Examples of these are dismissal for whistle blowing and dismissal for a reason connected with maternity.

Claim to be within three months

Any proceedings have to be brought within 3 months of dismissal. So, if a person is dismissed on 4^thJanuary the written claim must have been received by the tribunal on 3^rd April at the latest.

Ring 0115 8525813 for advice

Employee

Unfair dismissal proceedings may only be brought by employees. This usually rules out independent contractors but there are often arguments as to whether a person was an employee or genuinely self employed.

The tribunal’s considerations

The Employment Tribunal will consider whether there was a fair reason for dismissal and what that was, whether the employer followed a fair and correct process in deciding to dismiss and whether the reason for dismissal was one of the automatically unfair reasons.

Reasons for dismissal

The employer has to have a fair reason for dismissal. The tribunal has to identify the reason for dismissal. There are a number of specified potentially fair reasons. These are:

• A reason related to the capability or qualifications of the employee for performing work of the kind which he or she was by the employer to do. This typically includes not achieving targets and failure to do the job to the standard required.
• A reason connected with the conduct of the employee.
• That the employee was redundant.
• That the employee couldn’t continue to do the job without contravening the law in some way
• Some other substantial reason.

 

Ring 0115 8525813 for advice

Procedure

Before starting proceedings every potential claimant has to submit an Early Conciliation form to ACAS who will then approach the employer to try to reach an early settlement.

A tribunal will consider whether a fair procedure was used in dismissing the employee and whether the decision to dismiss was reasonable. In doing this it is required to have regard to the ACAS code of practice.It will consider the following:

1. Whether the employer investigated any alleged potential disciplinary matter. If possible the investigation, including any investigatory meeting should be conducted by a different person to the one who conducts any disciplinary hearing.
2. Whether the employee was notified by the employer in writing that it was conducting disciplinary proceedings and given the date, time and place of the disciplinary meeting. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.
3. Whether the employee was given an opportunity to be accompanied at the disciplinary meeting.Whether at the meeting the employer explained the complaint against the employee and went through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses.
4. Whether the employee was given an opportunity to appeal against the decision reached. If the employee appealed there would then be an appeal meeting similar to the disciplinary hearing which should preferably be conducted by someone other than the person who conducted the disciplinary.

It is not enough that the employer can show a fair reason for dismissal. The tribunal has to consider whether the employer acted reasonably or unreasonably in dismissing the employee for that reason. A major part of this consideration will be the procedure described above. The tribunal will also consider the size and administrative resources of the employer.

The tribunal will look at are whether the employer made sufficient enquiries and investigations into the situation.

With redundancy dismissals it will consider whether there was a redundancy situation and whether there was proper consultation with the employee.

Ring 0115 8525813 for advice

Compensation

Compensation is calculated by reference to two elements.

1. The Basic Award – A week’s gross pay subject to a maximum of £475 for each complete year worked. The maximum is £14250
2. The Compensatory award. This is to compensate for lost income and is subject to a maximum of £78335 but no more than 12 months' pay may be awarded.

The award of compensation for Unfair Dismissal is to make good the employee's loss. The tribunal awards compensation for actual losses incurred plus future estimated losses. It follows that the date when a claimant obtained a replacement income or will obtain such income is very relevant. The heads of compensation usually used by tribunals are:

  1. Immediate loss of earnings. These are losses incurred between the dismissal and    the hearing at which the tribunal decides on compensation.

  2. Future loss of earnings These will be estimated loss after the hearing e.g. future    losses based on how long it should take the claimant to find alternative    employment.

  3. Expenses incurred as a consequence of the dismissal.

  4. Loss of statutory protection rights. This covers the fact that the employee will be    unable to bring unfair dismissal proceedings for a year after starting a new job.

  5. Loss of pension rights

Making an employment claim

Making a claim to an Employment Tribunal is best done with the assistance of a qualified lawyer. I am a solicitor with years of experience of doing this.

A claim can be paid for in a variety of ways. The three most common are:

• Using legal expenses insurance - this is most often part of household insurance.
• No win no fee
• Paying at a set hourly rate

If you wish to discuss bring a claim ring Tony Wilkinson on 0115 8525813

Show me the money! – How does the Employment Tribunal work out compensation?

By Tony Wilkinson LLB; LLM; Solicitor.  Sharp Young and Pearce LLP, Nottingham

When it comes to the question of compensation employees are often over optimistic and employers are sometimes over pessimistic.  The purpose of this article is to examine compensation for Unfair Dismissal claims.

There are 2 main parts to a tribunal’s order of compensation ; the Basic Award and the Compensatory Award.

Basic Award
the Basic award is calculated in the same way as a statutory redundancy payment

Basic award

The Basic Award is calculated in the same way as a statutory redundancy payment. It is made up of

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.

A cap of 20 years is placed on the period of continuous service. The amount of a week's pay is capped at £475.

Compensatory Award

It is important to remember that compensation for Unfair Dismissal is to compensate the employee for losses of income and is not a method of punishing the employer. The amount of calculation is to be "such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer".

In assessing the claimant's losses arising from their unfair dismissal the tribunal will look at:
Past loss: from the effective date of termination to the date of the remedies hearing.
Future loss: a projection of loss from the date of hearing to such point in time in the future as the tribunal finds just and equitable with reference to the claimant's circumstances.

The calculation of future losses ends when the employee finds new work that pays the same or more than the job he or she was dismissed from.  So, for example, if he finds a new job that pays the same or more as the old job his or her losses are 4 weeks pay.

The maximum compensatory award is £78335 and is limited to 12 months' pay.  This is reviewed every year.

Loss of statutory rights

This is part of the compensatory award and is to compensate the employee for loosing statutory rights as a result of the dismissal.  The most obvious statutory right that is lost is the right to bring Unfair Dismissal proceedings against the new employer because if the employee obtained their new job after 6^th April 2012 they will have to work continuously for the new employer for 2 years before they can bring an Unfair Dismissal claim against them.  The amount involved is typically £250 or £300.

For specific advice contact Tony Wilkinson 0115 8525813

Adjustments to the compensatory award.

It would have happened anyway.

The amount awarded must be that which is "just and equitable" based on the loss arising out of the unfair dismissal. In a case called “Polkey”  the House of Lords stated that the compensatory award may be reduced or limited to reflect the chance that the claimant would have been dismissed in any event and that the employer's procedural errors accordingly made no difference to the outcome. This is called a “Polkey Reduction”

Contribution to dismissal

If the tribunal finds that the employee’s conduct contributed to his / her dismissal it may reduce the compensation accordingly.  An example of this is where the employee assaults another employee in the workplace and is dismissed without any proper procedure being followed.  The dismissal is unfair but the employee’s contribution to dismissal is 100%.

Failure to mitigate.

The employee is required to mitigate his loss by looking for alternative employment and applying for any benefits he may be entitled to.  So, if the employee cannot show that he has made attempts to look for alternative employment the tribunal will reduce the compensation and may reduce it to nothing.  It is therefore important that employees keep records of jobs applied for.

Failure to comply with the ACAS Code

The tribunal has a discretion to reduce the compensatory award by up to 25% if the employee has failed to comply with the requirements of the ACAS Code of Practice e.g. by failing to make use of the internal appeal procedure.  Likewise if the employer has failed to comply with the requirements of the ACAS Code the tribunal may increase the award by up to 25%.

Deduction of any redundancy payment

If the employer has made a redundancy payment that is set off against the Basic award.  If the payment made is greater than the statutory redundancy payment the enhanced element reduces the compensatory award.

Recoupment of state benefits

This is not strictly an adjustment of the compensatory award because the tribunal does not take receipt of state benefits into account in calculating the compensation for the period between dismissal and the remedy hearing.  If someone has received state benefits the tribunal is required to identify the amount of the award that relates to the period between dismissal and the hearing.  The Government will then send a “recoupment notice” to the employer specifying how much of the award is to be paid to the government to repay state benefits paid.  The balance is then paid to the employee. So far as future losses are concerned the tribunal can take account of any benefits it believes will be paid in reducing that element of the award.

Practical Tips for Employees.

• Be clear about the basis of the claim from the beginning.  Compensation will not be awarded for allegations falling outside of the proceedings and which the tribunal has no jurisdiction over.
• There is no requirement to specify the amount claimed at the outset but start working this out as early as possible.  The tribunal will make an order that you submit a Schedule of Losses. It must be worked out on the basis of actual losses.
• Keep records of jobs applied for and in due course put these all together so that you prove to the tribunal that you have tried to mitigate your losses.
• Keep records of state benefits received since dismissal.
• The question of remedy will not necessarily be postponed to another date and will probably be heard immediately after the decision on Unfair Dismissal has been made.  Be ready to present information on remedy.

Practical Tips for Employers.

• Consider what the claimant is entitled to claim.

• When the Claimant’s Schedule of Losses is received go through it carefully and be prepared to produce a counter schedule showing what you believe the true losses are and what adjustments should be made.
• Ask the Claimant to produce evidence of attempts to mitigate losses. For example, job applications made.
• Establish if the Claimant is in receipt of state benefits.
• Attend the hearing ready to argue against the Claimant’s assessment of losses and to point out areas where the award should be adjusted.

This is a guide only it is therefore brief and general It should not be relied upon in making decisions or taking steps relating to employment law matters.

For specific advice contact Tony Wilkinson 0115 8525813

Show me the money! – How does the Employment Tribunal work out compensation?

By Tony Wilkinson LLB; LLM; Solicitor.  Sharp Young and Pearce LLP, Nottingham

When it comes to the question of compensation employees are often over optimistic and employers are sometimes over pessimistic.  The purpose of this article is to examine compensation for Unfair Dismissal claims.

There are 2 main parts to a tribunal’s order of compensation ; the Basic Award and the Compensatory Award.

Basic Award
the Basic award is calculated in the same way as a statutory redundancy payment

Basic award

The Basic Award is calculated in the same way as a statutory redundancy payment. It is made up of

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.

A cap of 20 years is placed on the period of continuous service. The amount of a week's pay is capped at £450.

Compensatory Award

It is important to remember that compensation for Unfair Dismissal is to compensate the employee for losses of income and is not a method of punishing the employer. The amount of calculation is to be "such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer".

In assessing the claimant's losses arising from their unfair dismissal the tribunal will look at:
Past loss: from the effective date of termination to the date of the remedies hearing.
Future loss: a projection of loss from the date of hearing to such point in time in the future as the tribunal finds just and equitable with reference to the claimant's circumstances.

The calculation of future losses ends when the employee finds new work that pays the same or more than the job he or she was dismissed from.  So, for example, if he finds a new job that pays the same or more as the old job his or her losses are 4 weeks pay.

The maximum compensatory award is £74200.  This is reviewed every year.

Loss of statutory rights

This is part of the compensatory award and is to compensate the employee for loosing statutory rights as a result of the dismissal.  The most obvious statutory right that is lost is the right to bring Unfair Dismissal proceedings against the new employer because if the employee obtained their new job after 6^th April 2012 they will have to work continuously for the new employer for 2 years before they can bring an Unfair Dismissal claim against them.  The amount involved is typically £250 or £300.

For specific advice contact Tony Wilkinson 0115 8525813

Adjustments to the compensatory award.

It would have happened anyway.

The amount awarded must be that which is "just and equitable" based on the loss arising out of the unfair dismissal. In a case called “Polkey”  the House of Lords stated that the compensatory award may be reduced or limited to reflect the chance that the claimant would have been dismissed in any event and that the employer's procedural errors accordingly made no difference to the outcome. This is called a “Polkey Reduction”

Contribution to dismissal

If the tribunal finds that the employee’s conduct contributed to his / her dismissal it may reduce the compensation accordingly.  An example of this is where the employee assaults another employee in the workplace and is dismissed without any proper procedure being followed.  The dismissal is unfair but the employee’s contribution to dismissal is 100%.

Failure to mitigate.

The employee is required to mitigate his loss by looking for alternative employment and applying for any benefits he may be entitled to.  So, if the employee cannot show that he has made attempts to look for alternative employment the tribunal will reduce the compensation and may reduce it to nothing.  It is therefore important that employees keep records of jobs applied for.

Failure to comply with the ACAS Code

The tribunal has a discretion to reduce the compensatory award by up to 25% if the employee has failed to comply with the requirements of the ACAS Code of Practice e.g. by failing to make use of the internal appeal procedure.  Likewise if the employer has failed to comply with the requirements of the ACAS Code the tribunal may increase the award by up to 25%.

Deduction of any redundancy payment

If the employer has made a redundancy payment that is set off against the Basic award.  If the payment made is greater than the statutory redundancy payment the enhanced element reduces the compensatory award.

Recoupment of state benefits

This is not strictly an adjustment of the compensatory award because the tribunal does not take receipt of state benefits into account in calculating the compensation for the period between dismissal and the remedy hearing.  If someone has received state benefits the tribunal is required to identify the amount of the award that relates to the period between dismissal and the hearing.  The Government will then send a “recoupment notice” to the employer specifying how much of the award is to be paid to the government to repay state benefits paid.  The balance is then paid to the employee. So far as future losses are concerned the tribunal can take account of any benefits it believes will be paid in reducing that element of the award.

Practical Tips for Employees.

• Be clear about the basis of the claim from the beginning.  Compensation will not be awarded for allegations falling outside of the proceedings and which the tribunal has no jurisdiction over.
• There is no requirement to specify the amount claimed at the outset but start working this out as early as possible.  The tribunal will make an order that you submit a Schedule of Losses. It must be worked out on the basis of actual losses.
• Keep records of jobs applied for and in due course put these all together so that you prove to the tribunal that you have tried to mitigate your losses.
• Keep records of state benefits received since dismissal.
• The question of remedy will not necessarily be postponed to another date and will probably be heard immediately after the decision on Unfair Dismissal has been made.  Be ready to present information on remedy.

Practical Tips for Employers.

• Consider what the claimant is entitled to claim.

• When the Claimant’s Schedule of Losses is received go through it carefully and be prepared to produce a counter schedule showing what you believe the true losses are and what adjustments should be made.
• Ask the Claimant to produce evidence of attempts to mitigate losses. For example, job applications made.
• Establish if the Claimant is in receipt of state benefits.
• Attend the hearing ready to argue against the Claimant’s assessment of losses and to point out areas where the award should be adjusted.

This is a guide only it is therefore brief and general It should not be relied upon in making decisions or taking steps relating to employment law matters.

For specific advice contact Tony Wilkinson 0115 8525813

Show me the money! – How does the Employment Tribunal work out compensation?

By Tony Wilkinson LLB; LLM; Solicitor.  Sharp Young and Pearce LLP, Nottingham

When it comes to the question of compensation employees are often over optimistic and employers are sometimes over pessimistic.  The purpose of this article is to examine compensation for Unfair Dismissal claims.

There are 2 main parts to a tribunal’s order of compensation ; the Basic Award and the Compensatory Award.

Basic Award
the Basic award is calculated in the same way as a statutory redundancy payment

Basic award

The Basic Award is calculated in the same way as a statutory redundancy payment. It is made up of

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.

A cap of 20 years is placed on the period of continuous service. The amount of a week's pay is capped at £430.

Compensatory Award

It is important to remember that compensation for Unfair Dismissal is to compensate the employee for losses of income and is not a method of punishing the employer. The amount of calculation is to be "such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer".

In assessing the claimant's losses arising from their unfair dismissal the tribunal will look at:
Past loss: from the effective date of termination to the date of the remedies hearing.
Future loss: a projection of loss from the date of hearing to such point in time in the future as the tribunal finds just and equitable with reference to the claimant's circumstances.

The calculation of future losses ends when the employee finds new work that pays the same or more than the job he or she was dismissed from.  So, for example, if he finds a new job that pays the same or more as the old job his or her losses are 4 weeks pay.

The maximum compensatory award is £72300.  This is reviewed every year.

Loss of statutory rights

This is part of the compensatory award and is to compensate the employee for loosing statutory rights as a result of the dismissal.  The most obvious statutory right that is lost is the right to bring Unfair Dismissal proceedings against the new employer because if the employee obtained their new job after 6^th April 2012 they will have to work continuously for the new employer for 2 years before they can bring an Unfair Dismissal claim against them.  The amount involved is typically £250 or £300.

Adjustments to the compensatory award.

It would have happened anyway.

The amount awarded must be that which is "just and equitable" based on the loss arising out of the unfair dismissal. In a case called “Polkey”  the House of Lords stated that the compensatory award may be reduced or limited to reflect the chance that the claimant would have been dismissed in any event and that the employer's procedural errors accordingly made no difference to the outcome. This is called a “Polkey Reduction”

Contribution to dismissal

If the tribunal finds that the employee’s conduct contributed to his / her dismissal it may reduce the compensation accordingly.  An example of this is where the employee assaults another employee in the workplace and is dismissed without any proper procedure being followed.  The dismissal is unfair but the employee’s contribution to dismissal is 100%.

Failure to mitigate.

The employee is required to mitigate his loss by looking for alternative employment and applying for any benefits he may be entitled to.  So, if the employee cannot show that he has made attempts to look for alternative employment the tribunal will reduce the compensation and may reduce it to nothing.  It is therefore important that employees keep records of jobs applied for.

Failure to comply with the ACAS Code

The tribunal has a discretion to reduce the compensatory award by up to 25% if the employee has failed to comply with the requirements of the ACAS Code of Practice e.g. by failing to make use of the internal appeal procedure.  Likewise if the employer has failed to comply with the requirements of the ACAS Code the tribunal may increase the award by up to 25%.

Deduction of any redundancy payment

If the employer has made a redundancy payment that is set off against the Basic award.  If the payment made is greater than the statutory redundancy payment the enhanced element reduces the compensatory award.

Recoupment of state benefits

This is not strictly an adjustment of the compensatory award because the tribunal does not take receipt of state benefits into account in calculating the compensation for the period between dismissal and the remedy hearing.  If someone has received state benefits the tribunal is required to identify the amount of the award that relates to the period between dismissal and the hearing.  The Government will then send a “recoupment notice” to the employer specifying how much of the award is to be paid to the government to repay state benefits paid.  The balance is then paid to the employee. So far as future losses are concerned the tribunal can take account of any benefits it believes will be paid in reducing that element of the award.

Practical Tips for Employees.

• Be clear about the basis of the claim from the beginning.  Compensation will not be awarded for allegations falling outside of the proceedings and which the tribunal has no jurisdiction over.
• There is no requirement to specify the amount claimed at the outset but start working this out as early as possible.  The tribunal will make an order that you submit a Schedule of Losses. It must be worked out on the basis of actual losses.
• Keep records of jobs applied for and in due course put these all together so that you prove to the tribunal that you have tried to mitigate your losses.
• Keep records of state benefits received since dismissal.
• The question of remedy will not necessarily be postponed to another date and will probably be heard immediately after the decision on Unfair Dismissal has been made.  Be ready to present information on remedy.

Practical Tips for Employers.

• Consider what the claimant is entitled to claim.

• When the Claimant’s Schedule of Losses is received go through it carefully and be prepared to produce a counter schedule showing what you believe the true losses are and what adjustments should be made.
• Ask the Claimant to produce evidence of attempts to mitigate losses. For example, job applications made.
• Establish if the Claimant is in receipt of state benefits.
• Attend the hearing ready to argue against the Claimant’s assessment of losses and to point out areas where the award should be adjusted.

This is a guide only it is therefore brief and general It should not be relied upon in making decisions or taking steps relating to employment law matters.

For specific advice contact Tony Wilkinson 0115 8525813