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Management Services Spring 2012
Legal topic
Unfair dismissal – your rights after the terminat
Courtesy of Russell Jones & Walker Solicitors.
eing dismissed from your job is often a distressing experience, but in such circumstances you may have rights to compensation. You may be entitled to be paid through your notice period or to compensation if your dismissal was unfair. You could be due a redundancy payment or to be compensated for discrimination.
B
Wrongful dismissal and breach of contract Wrongful dismissal is a contractual claim. This arises where you have been dismissed and your employer has failed to fulfi l their contractual obligations to give you notice of dismissal.
Your right to notice Unless you are guilty of gross misconduct, your employer must either allow you to work out your notice or make a payment to cover that notice period. The notice period is whatever the contract says, subject to the statutory minimum of one week for each full year of employment.
Even if you have been wrongfully dismissed, you are under a duty to do your best to fi nd alternative employment (to ‘mitigate’ your loss).
In assessing what your losses are, you have to offset any earnings you receive
during that period and any earnings you ought to have received, assuming you had made reasonable attempts to fi nd alternative employment, from what you would have received if you had not been dismissed.
Damages for wrongful dismissal are generally free from tax up to £30,000, but the measure of loss is the net pay and benefi ts for the notice period minus any earnings in mitigation. Alternatively your
employer may reserve the right in your contract of employment to make a payment in lieu of notice. If this is the case you should receive a payment which refl ects the length of your notice period. You are not expected to work your notice period. This payment is taxable as earnings in the usual way.
What is unfair dismissal? If you have been employed for one year or more you have a right not to be unfairly dismissed. In order to dismiss fairly, an employer must: • Have a fair reason for dismissal; and
• In dismissing the employee must follow proper procedures and the dismissal must be fair in all the circumstances.
Potentially fair reasons for dismissal include: lack of capability, misconduct,
Remember that time limits can be complicated and you should take prompt legal advice if you think you may have a claim
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