Unfair dismissal
The employment law team at Allan McDougall Solicitors has vast expertise regarding unfair dismissal in the workplace. With specialist experience spanning decades, we work on behalf of employees in Scotland and help you deal with complicated employment matters.
From what qualifies as unfair dismissal to how to dispute it, we understand the framework for unfair dismissal in Scottish workplaces. As a result, we can help you get the best possible result if you feel you’ve been unfairly dismissed.
What is unfair dismissal?
Unfair dismissal happens if you’re unfairly fired from your job. To fall into the category of fair dismissal, the employer must establish a fair reason for dismissal, and act reasonably in treating it as a sufficient reason for dismissal. This involves following fair procedure.
An employee’s dismissal can be deemed unfair if it doesn't meet these measures. It can then be disputed and taken to an employment tribunal.
Crucially, only employees with at least two years of continuous service with the employer have a right not to be unfairly dismissed. This is based on the law at the time of writing.
Five categories of a fair dismissal
Here are the five potentially fair reasons for dismissal in Scotland and the rest of the UK:
- If you aren’t capable or qualified to carry out your job responsibilities. This is known as dismissal by reason of capability.
- If your behaviour in the workplace constituted misconduct, such as a failure to show up on time or follow instructions.
- If there’s a genuine need for redundancy, such as the business closing down.
- If a statutory law is broken, which is rare. An example would be if you’re employed in a driving role and are banned from driving.
- SOSR, which stands for some other substantial reason. SOSR doesn’t have a legal definition but covers explanations that don’t fit into the first four categories.
Can a seemingly fair dismissal be disputed?
In short, yes. Sometimes employers may use a potentially fair reason to conceal the real reason for dismissal, or they might have failed to follow the ACAS Code of Practice when dismissing you for misconduct or poor performance, for example. They may also not have followed the correct dismissal procedure or have reasonable belief sustained by reasonable grounds that there was any wrongdoing on your part.
These issues and more can be disputed and end up in an employment tribunal to decide whether the dismissal was fair or unfair. In this situation, the onus will be on your employer to show that they had a fair reason for dismissal and they acted reasonably when dismissing you.
Automatic unfair dismissal
There are a number of automatically unfair reasons for dismissal. Some examples include:
- If you were dismissed for being a trade union member or partaking in trade union activities.
- Whistleblowing.
- Health and safety reasons.
- Because of a protected characteristic.
- Because you sought to exercise a statutory right.
And more.
How to pursue an unfair dismissal claim
The most important thing to note is that a claimant has three months minus one day from the date of the dismissal to present a claim in the Employment Tribunal for unfair dismissal.
You should do the following to prepare for litigation:
- Gather together all documents you hold regarding your dismissal. This can include your letter of dismissal, minutes of any meetings you attended, any evidence your employer presented to you, and letters or emails inviting you to any meetings.
- You must appeal the decision to dismiss and keep all documents you hold about your appeal.
- Gather as many payslips as possible to prove what you’ve lost because of dismissal.
- Gather proof of workplace pension contributions.
- Record all attempts to secure alternative work post-dismissal from applications to interviews and everything in between.
- Apply for state benefits and keep a record of benefits received.
- If you secure alternative work, gather payslips from your new employer to help calculate the compensatory award.
Our employment law experts can help you understand the law regarding unfair dismissal and how to pursue an unfair dismissal claim. Get in touch to find out how.
Potential results of unfair dismissal claims
Remedies of reinstatement and re-engagement
If an employment tribunal finds your dismissal unfair, reinstatement or re-engagement may be ordered. This will mean you are either re-instated to your previous role or re-engaged to a different role. Neither option is very practical, however, so they’re rarely used.
Instead, successful unfair dismissal claims usually result in one of two financial awards, which are as follows.
Basic award for unfair dismissal
The basic award is capped at 20 years of continuous service and £700 per week of your salary. The maximum basic award value is £21,000 as of 6 April 2024, and this is based on the same formula as a statutory redundancy payment.
Compensatory award for unfair dismissal
The compensatory award is designed to compensate you for losses from dismissal, provided they’re attributable to the employer. This usually means the immediate loss of wages, loss of pension rights and contributions, future loss of wages, and loss of statutory protection.
Any income from new employment is deducted from the compensatory award, and any payments received from income-based benefits can be recouped. If you’ve been paid instead of given notice, this is offset against the compensatory award amount.
Can unfair dismissal awards be reduced?
If a tribunal finds that your conduct contributed to your dismissal, both awards may be reduced. If the tribunal finds that you unreasonably failed to mitigate your loss, it can also apply a reduction to the compensatory award.
In addition, if the dismissal is procedurally unfair, a tribunal can reduce the compensatory award. The argument in this case is that you would have been dismissed in any event and that the employer's procedural errors made no difference to the outcome. This is known as a Polkey reduction.
The prospect of a contributory fault reduction, a failure to mitigate reduction, or the Polkey reduction may be disappointing for claimants. However, if an employer has unreasonably failed to follow the ACAS Code of Practice, the tribunal may increase the compensation by up to 25%.
Please note that the absolute maximum a tribunal can make for a compensatory award is the lower of 52 weeks’ wages or, from 6 April 2024, £115,115.
How we can help
At Allan McDougall Solicitors, we have vast experience helping employees recoup the losses of unfair dismissal from their employers.
By learning about the circumstances leading to your dismissal from work, we can help you build a case and dispute the decision. Our team is professional, friendly, and knowledgeable, and we demonstrate your legal entitlements as an employee and achieve a fair outcome from any disputes or tribunals.
Get in touch with Allan McDougall Solicitors
If you feel you’ve been unfairly dismissed at work, don’t hesitate to get in touch with the employment law experts at Allan McDougall Solicitors.
Contact us
- Email us
- Call free on 0808 560 0872
- Arrange a callback by using our enquiry form
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