Employment Law: What happens if you face an Unfair Dismissal Claim?

I have advised both employers and employees for over 20 years on employment issues. When acting for employers, that advice is often proactive, seeking to minimise any risk that employer may face should an employee bring an Employment Tribunal claim.

Whilst an employer could face various claims in an employment tribunal from lower level wages claims, to complex discrimination claims, the most common are Unfair Dismissal claims. This is a claim that can be brought by an employee, provided that they have two years qualifying service with the employer, and if successful, they could receive up to 1 year’s salary (which is capped), plus some other extras.

This article is not an analysis of what amounts to a reasonable or fair dismissal, but to assist employers on the process they might face, should an employee bring a claim. It goes without saying that taking advice at the time of dismissal dramatically increases an employer’s chances of successfully defending such a claim.

1)The Pre-Action Stage

Your former employee might instruct solicitors, or may themselves, write to you asserting that that have been unfairly dismissed, and the reason they think why. This is not a requirement in the process but it is often done in tandem with a “without prejudice” ie off the record letter, seeking settlement. It is often important to engage with the possibility of settlement from a commercial basis, as any legal costs (for either side) are not recoverable from the other side other than in fairly extreme circumstances.

What is, however, a requirement for Claimants (ie the employee) is to notify ACAS under the Early Conciliation (EC) process. This can just be a notification without utilising the mediation service ACAS provide, but prior to issuing the claim, the employee must have used and completed this, and got a certificate number from ACAS, that they put on the Employment Tribunal Claim form (ET1). ACAS can be particularly useful if the employee does not have legal representation, as they act as informal mediators on any settlement discussions.

2) The Claim and Defence

If an employee wants to bring a claim, they must do so within 3 months of their dismissal. That time limit is paused or extended for the ACAS EC process (depending on the dates of that), meaning in practice they have a matter of around 4 months to bring the claim. They can do this online or by sending the claim to the correct local office. Once the claim is issued, it is processed and sent to the employer, who then has 28 days to rile their response/defence (Form ET3). The ET1 Claim Form and ET3 Defence are often accompanied by a more detailed document setting out the relevant case.

3) Preliminary Hearing/Directions Issued

What the Tribunal does next varies on the office and, more importantly, the complexities in the case. They might issue a set of standard directions ie a timetable, setting out what the parties have to do and by when, or they will set a Preliminary Hearing. This is a short remote hearing, where any legal issues in the case are discussed, and a timetable to the final hearing is set. 

The timetable will usually comprise set dates by which actions must be taken, for example:

i) The Claimant must send the Respondent Employer a Schedule of Loss ie how much the claim is worth;

ii) Disclosure – This is each party sending the other relevant documents they wish to use at the Tribunal;

iii) A Trial Bundle – This, usually prepared by the Respondent employer, is a joint, page numbered bundle for use at the final hearing;

iv) Witness Statements – Each side must send a signed statement for any witnesses they will use at the hearing.

The final hearing date will also be set at the Preliminary Hearing/Directions stage. Unfair Dismissal claim hearings can be as short as 1 day, but often run into multiple days eg a recent case I had with 4 witnesses on each side was listed for 5 days.

4) The Final Hearing

This is where the Employment Tribunal hears and decides the case, and if the Claimant is successful, how much money they will receive. On Unfair Dismissal, an Employment Judge sits alone hearing the case. These can often be done on a remote basis.

The Judge will take into account a number of factors in deciding if the Claimant has been dismissed fairly or not:

i) Did the employer have potentially fair reason for the dismissal? Eg misconduct, capability?;

ii) Did they act reasonably in all the circumstances? Ie in a way that a comparable employer would have acted?;

iii) Did they follow a fair procedure in reaching their decision?;

iv) How credible were each sides’ witnesses?

If the employee is successful, they are awarded compensation. This can be reduced or increased depending on a variety of procedural and conduct based factors.

The employee is also a under a duty to mitigate their loss and try and seek alternative employment. If they do secure alternative work, they must deduct what they earn from that from their compensation claim.

Whilst an employer cannot stop an employee issuing such a claim, they can best place themselves to defend it. Even if they have made mistakes in dismissing, they can reduce compensation dramatically.

Employers should also always be alert to any issues involving departing staff, and always take proactive advice in how to deal with these issues.

Alex Jones
365 Employment Law Solicitors
Tel: 01903 863284
ajones@365employmentlaw.co.uk
www.365employmentlaw.co.uk