We understand that being dismissed from your employment is a life changing event. This will bring unwanted stress and worry into your life, even more so if it involves unfair circumstances.
However, the right not to be unfairly or wrongfully dismissed is a statutory right of every employee.
We appreciate that seeking advice can still be a daunting process though, particularly if you have worked for your employer for a long period of time. It is likely to be the first time you would require legal advice in relation to your employment.
Getting the right advice can make all the difference.
Unfair dismissal claim
Our specialist employment solicitors can help with unfair dismissal claims in Scotland and provide you with specific advice relevant to your individual circumstances.
At Digby Brown we want to provide clarity about how much this could potentially cost you. We can assess your case for a fixed fee of £300 plus VAT.
For this, our solicitors will provide you with their expert views and recommendations. This advice will be relevant to you and help you move forward.
When must a claim for unfair dismissal be made?
In general, a claim for unfair dismissal must be presented to the Employment Tribunals service within three months of the date of termination. If, for example, an employee was dismissed on 1 January then their claim would require to be lodged before midnight on 31 March.
The three-month time limit commences from the ‘effective date of termination’. As a qualifying period of employment is required to bring an unfair dismissal claim, the claimant's period of continuous employment is calculated up to and including the 'effective date of termination'.
The effective date of termination is the date when:
- Notice expires where the contract is terminated by either party giving notice
- Employment is terminated without notice (summary dismissal)
- The end of a fixed term contract
Do I have a right to claim unfair dismissal?
In order to claim for unfair dismissal you must be an employee, and you must have been dismissed. An unfair dismissal complaint cannot be taken whilst employment is continuing and it is for the employee to establish that they have been dismissed by the employer. In many cases the dismissal itself is not disputed and the employer will seek to establish that the dismissal was fair.
The right not to be unfairly dismissed at present arises where an employee has two years’ continuous service. In general terms the only exception to this rule is where dismissal is discriminatory in relation to a ‘protected characteristic’ in terms of the Equality Act 2010. These protected characteristics include disability, sex, race, age, pregnancy, sexual orientation and religious belief.
The right not to suffer discrimination is not subject to a length of service requirement and even applies to job applicants. Find out more about discrimination at work.
What are the fair reasons for a dismissal at work?
Once an employee has established that they have the right not to be unfairly dismissed and that they have been dismissed, a tribunal will generally look to the employer to show that the reason or principal reason for dismissal was one of a list of potentially fair reasons.
Potentially fair reasons for dismissal include capability, conduct, redundancy, breach of statute and some other substantial reason (known as a ‘SOSR’ dismissal).
In the event that an employer successfully establishes a potentially fair reason for dismissal, a Tribunal may still find the dismissal to be unfair if the employer has failed to follow a fair procedure.
Employers must follow the ACAS Code of Practice on Disciplinary and Grievance procedures when disciplining and ultimately dismissing an employee. Failure to do so can result in an increase in compensation.
Unfair dismissal remedies
When an employee is successful in claiming unfair dismissal, the Tribunal will then consider what remedy should be provided to the employee:
The available orders are:
- An order for compensation
- An order for reinstatement - ordering the employer to give the employee their old job back and to make good any loss of earnings from date of dismissal to date of reinstatement
- An order for re-engagement - ordering the employer to give the employee a job comparable to their old job and to make good any loss of earnings from date of dismissal to date of re-engagement
Orders for reinstatement or re-engagement are rarely asked for and are even more rarely made.
How long will an unfair dismissal claim take?
We aim to reach conclusion on disputes as speedily as possible. It may be possible to resolve the issues out with the Tribunal setting and this can often be the case.
If we do recommend that matters require to proceed to a Tribunal, our solicitors are equipped to use their experience to handle matters efficiently and effectively for you.
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