Q&A - Unfair Dismissal
Q: I have been working for my employer for four and a half years. I've had some health problems, and have had to take some time off sick. Yesterday I was told to come to a meeting to discuss making me redundant because of my poor attendance. The company have just recruited new staff. The meeting is tomorrow at 10am. I'd like to take a friend, but my friend needs more notice of the meeting.
You have the right to take a colleague or union representative with you and the right to ask for a postponement for this to be arranged. It is always wise to have someone there who can take notes and be a witness to what happens in case you and your employer have different accounts of this meeting later. If your friend is not a colleague or union representative you can still ask for this friend to be allowed to attend. However your employer would be entitled to say it must be a colleague or union representative, unless the disciplinary procedure says otherwise. Make sure you ask for a copy of the disciplinary procedure before the meeting. Even if your employer does not have their own disciplinary procedure there is a minimum requirement that they put the decision they are contemplating and the reasons for it in writing to you and give you enough time to think about your response before they hold the meeting. This employer has not done this and would be in breach.
Q: I have been working for my employer for three years. I developed a bad back and have been off sick from time to time, though I still manage to get to work most of the time. My manager has spoken to me about my attendance at my annual appraisal. I took some time off a few weeks ago because my elderly mother died. My employer has just told me that my attendance has not been good enough and the company cannot cope with erratic attendance. They said they want to make me redundant rather than sack me. They've offered me basic redundancy pay if I agree to sign a compromise agreement (an agreement forfeiting the right to take the Company to Tribunal). They say they have no choice but to make me redundant and that they need an answer right away about the redundancy pay. Should I accept their offer?
It looks like you have a case of unfair dismissal. You are not really redundant, you are being dismissed for poor attendance. Your employer has treated you unfairly because they have failed to give you clear warnings that this might happen and a chance to improve. Also your dismissal might be automatically unfair as the absence leading the employer to take action may fit the definition for dependent care leave which you are entitled to take.
If you accept your employer's offer, you will give up the right to take your employer to Tribunal for unfair dismissal, although you will get redundancy pay. The difference is that in unfair dismissal claims you can claim money for your lost income after your dismissal and a small amount for the loss of your rights which you have after a year's service in addition to the amount you get for redundancy pay. You could try to negotiate a higher compensation deal or take your employer to Tribunal.
The employer is unlikely to want a Tribunal claim which is why it is asking for the compromise agreement to be signed. This gives you some bargaining power.
If you are successful at claiming unfair dismissal, you will get the equivalent of redundancy pay as well as loss of wages following your dismissal ( provided you try to find another job) and about £300 for the loss of your rights as an employee with over one year's service. You can use this to ask for more money now. You cannot get an agreed reference in the Tribunal, but you could negotiate one as part of a compromise agreement, protecting yourself from a bad reference in the future. The negotiation is probably best done by letter to your employer spelling out what you can claim at Tribunal, and what you want to settle for. Correspondence should be marked "without prejudice" and then cannot be referred to in a later Tribunal claim.
Another option is to use your employer's disciplinary procedure to appeal. Your employer should offer you the right of appeal by law. It is worth using your employer's appeal process to try and sort the case out at an early stage. If you fail to follow the appeal process it might reduce your compensation. If you want to appeal, you should not sign the compromise agreement.
If you appeal, you can still ask for more money to sign the compromise agreement and negotiate an agreed reference, or take your employer to Tribunal if it does not work out.
Q: I have been sacked by my employer for smoking on the premises. Everyone does it. I think I have been chosen because my manager feels threatened by me. I appealed and my employer offered me a reference but no money. I am not happy with what they have offered. How do I take my case to a Tribunal?
If you only want to claim unfair dismissal your claim must be submitted to the Tribunal within three months of the date your employment ends. For example, if your employment ended on the 16th February, your deadline for bringing a claim is the 15th May. This time limit is very important as late claims will usually fail. If your claim involves other issues like failure to pay notice and holiday pay you will need to put in a grievance before you can issue those claims. You should put your grievance in within the above three month period. This will extend the period for putting in a Tribunal claim for a further three months.
You should seek advice from a Law Centre, Citizens Advice Bureau or from a solicitor. If you are claiming benefits, some solicitors will give free advice. You should look for a solicitor through Community Legal Service Direct by typing your postcode into the box on the right of this page. You can lodge your claim online at Employment Tribunals Online (link on the right of this page). It is important that everything you are claiming is put on this form and that you use the official form. There are certain pieces of information you must provide or your claim will be sent back to you. Using the official form will help you make sure you put everything in the form that is necessary. These forms are compulsory any way after 6 April 2005. It is also important to check by telephone that the Tribunal receives the claim, whether you send it online, or by fax or post. You will only have complied with the deadline if your form actually reaches the Tribunal before the deadline and it is your responsibility to make sure it does - even if there is a problem with the Tribunal's website or fax machine.
You do not have to pay to take a case to Tribunal. Even if you lose, you won't have to pay your employer's costs (for example their legal costs in defending your case), unless the Tribunal think you brought and conducted the case vexatiously ( e.g. if there were no grounds for bringing your case, and you were just doing it to be annoying), or if you were behaving unreasonably, for example. by being abusive, or disruptive, or if you'd based you whole case on lies.
The Tribunal also has power to order costs where you ask for an adjournment of the time fixed for hearing (for example where the employer has paid for a legal representative and then you ask for a late adjournment) or if you fail to comply with an order to do something. It is therefore very important that you make sure you can attend the hearing on the dates fixed or that you let the Tribunal know that you cannot well before the hearing date. It is also very important that you cooperate with orders.
For more information on what happens at a Tribunal, read our feature 'What happens when you submit a claim for unfair dismissal to the Tribunal?' on the right-hand side of the page.
