There are a number of steps that need to be taken if you feel you have been unfairly dismissed from your employment. It is important that you take the steps promptly as the time limit for bringing a claim is only three months from the date of the dismissal.
- Enter an internal appeal against dismissal. Refer to the staff handbook and/or the contract of employment for the procedure. Refer to ACAS or to a solicitor if there is none.
- Refer the matter to ACAS so they can try to secure an amicable settlement without the need for a Claim to the Employment Tribunal. If agreement is not reached, keep the Certificate ACAS issue at the conclusion of their “Early Resolution” procedure as the reference given on the Certificate is important.
- Check whether you have legal expenses insurance for a claim to the Employment Tribunal. Home Insurance often has cover for the legal expenses of bringing a claim for unfair dismissal even if you are not the policy holder - as long as you are a member of the family living with the policy holder.
- Make sure you bring your claim within 3 months (less a day) of dismissal. Time spent with the ACAS Early Resolution Procedure “stops the clock” for this time limit. Internal appeals however DO NOT “Stop the clock”. Do not leave it to the last minute unless you have to. If incapacitated you may be able to bring the claim out of time but you need to act as soon as you are able and have medical or other evidence to show why the deadline was missed.
- Check for entitlement to benefits and apply as soon as you are eligible (as payments are rarely backdated to a time before the application was first made). Remember some benefits are paid without a means test and others are not.
- Payment Protection Insurance has a bad press because many policies do not pay out when they are expected to, but some do; so if you have PPI, make a claim under the terms of the policy. If you have it and they do not pay out as expected, make a claim to the Financial Services Ombudsman for compensation. The deadline for that is the 29 August 2019. We can help with that as well.
- Try and find another job. Unless it amounts to misusing information that is confidential to the employer, use your contacts. Consider using social media such as Linkedin and registering with reputable employment agencies. Do a C.V. and dress appropriately for interviews. Do in depth research on any employer who invites you for an interview and be ready with answers to expected questions such as salary expectations. Your old employer is normally obliged to give you a reference even if they dismiss you. If you are worried about a bad one, see what they offer. If they are sensible they will offer you at least a bare minimum reference with no reference to your qualities, good or bad (though references to your good qualities can sometimes be negotiated). Employment Tribunals normally dock any compensation they award you if you do not try to find another job.
- If losing your job means you are worried about losing your home due to arrears, talk to the Citizens Advice Bureau. They know that where possession Court Judges have a discretion (and they often do) the Judge will often let you stay on terms even if your landlord/mortgage lender wants you out. Most of the time, free professional help is also available at Court on possession days so it is important to turn up. Most responsible lenders and landlords will however talk sensibly with you about any short term problem, such as the loss of a job, without the need for Court action. Your home can not be repossessed against your wishes without Court action and take advice before volunteering or agreeing to go. Volunteering to go could mean you lose a right to be rehoused by your Local Authority.
- Keep all evidence about the dismissal and attempts to get a new job. If in doubt, keep it and let us decide later whether it is relevant.
- If you become depressed, seek proper medical advice and remember it is rarely as bad as it seems immediately after a dismissal - especially an unexpected one.
Unless the contract of employment specifies the Employer can pay you in lieu of notice (“Pilon” for short), you can normally insist on working out your notice period (and sometimes you can insist even if there is a “PILON” Clause) . Do so if it takes you over the second anniversary of your starting work unless doing so prevents you taking up a suitable new position elsewhere.
Ordinarily, if you have not reached the second anniversary of starting work, you can not make a claim for unfair dismissal. Remember however that time spent with a previous employer might count toward those two years if the employer who has dismissed has taken over the work the previous employer provided you with (in buying their business, outsourcing the work, or bringing outsourced work back “in house” for instance).
There are exceptions to the two year rule. They include dismissals which are primarily for:
- Pregnancy or taking maternity leave (or other parental leave) or taking legitimate time off for dependents.
- Asserting certain rights as a fixed term, part time or agency employee;
- Asserting certain health and safety; working time and Sunday working rules.
- Asserting pension enrolment rules; minimum wage rules; and/or the right not to have pay deducted.
- Whistleblowing.
- Jury Service or carrying out duties as an armed forces reservist.
- Political views or affiliation.
- Certain trade union or employee representative or industrial dispute activities.
If you do not have a claim for unfair dismissal, you might still have a claim for other matters such as not being given your correct notice (and that is called “wrongful” rather than “unfair“ dismissal); accrued but untaken holiday; back pay; and/ or discrimination. If you can show the reason for dismissal is protected by discrimination laws then a dismissal because you have a protected characteristic (race, sex, disability, religious or other beliefs, sexual orientation, permanent gender realignment, age and the like) is likely to be something that can be pursued as a discrimination claim no matter how short the employment.
Not all dismissals are unfair. Some dismissals are potentially fair provided the correct procedure is used. In dismissals citing the employees dishonesty for instance, the test is not whether the employee acted dishonestly, but whether the employer had reasonable grounds to believe they acted dishonestly - provided the employer has gone through a fair procedure before coming to their conclusion. Not all procedures are fair and an unfair procedure for dismissal is normally an unfair dismissal.
Stephen Mackie, a Partner here at John Hodge solicitors, has over 30 years experience of presenting and defending claims for unfair dismissal (including constructive dismissal) and over 20 years experience in advising on severance packages in “Settlement Agreements”. It is best to contact him as soon as possible after being told of a dismissal but many clients wait until just after ACAS have issued their certificate that they have tried and failed to achieve a settlement (as it is only then that we can try and secure funding from your home insurers and consider no win no fee if you have no more suitable way of paying legal fees). Each case is different and this blog is a general guide to the action required if you are dismissed and is no substitute to specific advice from us on your particular situation.