An employee can bring a claim for unfair dismissal provided he has more than 12 months continuous service with his former employer and the claim is submitted within 3 months from the date of the dismissal.

To successfully defend the claim, the employer would need to prove to the Tribunal firstly that its reason for the dismissal was fair. There are 6 potentially fair reasons:

1. Redundancy
2. Conduct
3. Capability
4. Some other substantial reason (eg personality clash)
5. Legal obligation to end employment (eg employee goes to prison)
6. Retirement

If the employer is able to rely on one of the above grounds, the Tribunal will then consider whether the employer acted reasonably in relying on the fair reason as sufficient in justifying the dismissal of the employee. In deciding this, the Tribunal will consider the size of the employer and its resources. It will also consider "the band of reasonable responses" test which looks at whether the response of the employer was reasonable in the circumstances.

Secondly, the Tribunal will consider whether the employer carried out a fair disciplinary procedure in line with the ACAS code of practice. If the employer is able to show that it had a fair reason for the dismissal but did not carry out a fair procedure then the employer is not likely to be able to show that the dismissal was fair.

A successful claim for unfair dismissal will lead to damages being awarded based on net loss of earnings from the date of termination of employment up to the date of the Tribunal hearing (normally about 6 to 8 months net losses NB this is capped at the statutory maximum). Employees have a duty to mitigate the loss (i.e. to find another job) and any earnings will be offset against the damages that could be awarded. Awards can also be reduced for contributory fault. If you would like further information on this and any other employment matter, please contact us today.