The Equality Act 2010^[1] is a law which protects individuals from discrimination. It means that discrimination or unfair treatment on the basis of certain personal characteristics, such as age, is against the law in almost all cases.

The Equality Act 2010 is the legislation that protects people from discrimination in the workplace and in wider society.^[2]

It replaced previous anti-discrimination laws with a single Act, making the law easier to understand and strengthening protection in some situations. It sets out the different ways in which it’s unlawful to treat someone.

Under the Equality Act there are nine protected characteristics^[3] and the following characteristics are protected characteristics:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex;
• sexual orientation.

Under the Equality Act, individuals are protected from age discrimination in all aspects of their employment including the recruitment process, employment terms and conditions, promotions and transfers, training and dismissals. The Equality Act protects individuals from direct discrimination, indirect discrimination, harassment and victimisation.^[4]

The act of age discrimination in the workplace can take many forms. Generally, it occurs when an employee or job applicant is treated unfairly and less favourably to others because of their age.^[5]

The Equality Act 2010 has replaced the Equal PayAct 1970, Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Age) Regulations 2006.

Yes, it is against the Equality Act to discriminate against someone because of their age.^[6] This could be because the individual is younger or older than others and if the difference in treatment is as a result of their age it will breach the Equality Act.

If you've been treated unfairly and less favourably to others at work and it's because of your age, you may have been discriminated against. The law which says you mustn't be discriminated against is called the Equality Act 2010. Discrimination which is against the Equality Act is unlawful.

Definition: age discriminationin the workplace is the practice of letting a person's age unfairly become a factor when deciding who receives a new job, a promotion, or other job benefits. Decisions about terminating employees also cannot be solely based on their age.

Legislation came into force in 2011 making it unlawful to treat people differently on grounds of age, unless such treatment could be justified or falls within one of the exemptions to the law.^[7] The default retirement age of 65 has been phased out. Employers are only able to compulsorily retire workers if it can be objectively justified.

Objective justification^[8] is what an employer needs to show, if they want to stay on the right side of the Equality Act while treating people differently on grounds of age, unless you can claim:

• they were acting within the general exemption
• they were acting within one of the specific exemptions
• they were complying with other legislation containing age restrictions
• they were undertaking 'positive action'
• they have a 'genuine occupational requirement' for somebody of a particular age

For an employer to prove 'objective justification', for either direct or indirect discrimination on grounds of age, they must be able to show that what they were doing was a appropriate and necessary ('proportionate') means of achieving a 'legitimate aim'.

To prove that what they were doing is appropriate and necessary, the employer must be able to show:

• that it will actually contribute towards achievement of a 'legitimate aim'
• that the benefits they expect it to produce were sufficient to justify the amount of discrimination they were prepared to practise
• that they were practising no more discrimination than is strictly necessary

The concept of 'objective justification' is very difficult to pin down partly because it depends on the employer establishing that they had a 'legitimate aim'; and there is neither definition nor description of what a 'legitimate aim' may be.

A legitimate aim is the reason behind the discrimination and the reason must not be discriminatory in itself and must be a genuine or real reason.

Here are a few examples of a legitimate aim:

• Health, safety and welfare of individuals
• Running an efficient service
• Requirements of the business
• Desire to make a profit

There are four types:^[6]

1. Direct discrimination– Treating someone less favourably because of their actual or perceived age, or because of the age of someone with whom they associate.
2. Indirect discrimination– This can occur where there is a policy, criteria or practice (PCP) that applies to all workers, but disadvantages people of a particular age.
3. Victimisation– This covers unfair treatment of an employee who has made or supported a complaint about age discrimination.
4. Harassment- This can be unwanted behaviour/conduct towards person related to age. Such behaviour or conduct can be deemed as harassment if it has the purpose or effect of violating someone’s dignity or creating a hostile, intimidating, degrading or humiliating environment for that person.

The legislation covers all employees, job applicants, contract workers, office holders, those who are on secondment and the self-employed. The regulations affect all areas and stages of employment, including:

• Recruitment
• Employment terms and conditions
• Promotions and transfers
• Training
• Dismissal

Remember, there is no upper or lower age limit on age discrimination.

There are a number of signs of age discrimination including:

• Biased comments– For example, being calling names like a coffin dodger by your boss or an interview panel repeatedly commenting on your lack of relevant experience and youth.
• Promotion– if you are passed over for promotion in favour of a less qualified employee, it could be an example of age discrimination.
• Unequal treatment– if you are disciplined for something that older or younger employees get off scot free about, you could have a case.
• Laid off– if there are a number of redundancies where you work, and those laid off are disproportionately older or younger, that could be down to age discrimination.
• Favouritism– if older or younger employees are excluded from important meetings.

The discrimination laws do protect individuals when you apply for a job as well as while you are working for an employer. The problem is that it can be difficult to prove sometimes, so it is important to collect and gather evidence. This could be making a note of it in a diary or note book and keeping details of any witnesses if there are any. While making those notes, don’t forget to put down times, dates and places.

If you feel you are being treated differently it is important to get some advice.

First, you should try to sort out the problem with your employer informally and then formally through the grievance process^[9] before taking the matter any further.

If you have followed the employer’s grievance procedure including the appeal process and the matter is still not resolved, you can take the matter up with an employment tribunal.^[10]

The important point to remember an employment tribunal complaint MUST be made within three months of the discriminatory act complained about.

If the company grievance process takes a longer than the 3 months, you may have to submit your tribunal claim before the grievance process is completed. Always take legal advice if making a claim to an employment tribunal.

Constructive Dismissal^[1] is where the employer has committed a fundamental breach of contract, entitling the employee to resign in response to the employer's conduct. The employee is entitled to treat him or herself as having been “dismissed” and the employer's conduct is often referred to as a “repudiatory breach”.

In effect it is when an employee is forced to resign because of their employer's unlawful behaviour; they have acted in such a way it makes the continued employment impossible.

This could take the form of a single serious breach in the contract or it may be the ‘last straw’ effect in a number of events which when put together amount to a serious breach of contract

In order to pursue a claim for constructive dismissal^[2] at an employment tribunal, you must show that:

• your employer committed a fundamental breach of your employment contract; 

• you did not accept the breach;

• you felt forced to resign because of that breach.

An important note; A delay in taking steps to claim constructive dismissal may amount to an acceptance of your employer’s breach and an affirmation of your contract, thus making a constructive dismissal claim difficult to make.

Most constructive dismissal claims to the employment tribunal, will involve a breach by the implied term of mutual trust and confidence in your contract of employment, which in reality means a break down in the relationship between the employer and employee.

This implied term^[3] underpins all employment relationships, and you would have to show that your employer deliberately and without good reason acted in a way to destroy such trust.

Here are a few examples of a fundamental breach by an employer include:-

• forcing a cut in salary or other benefits or failing to pay you;

• a detrimental change in the contract of employment, without good reason;

• demoting you to a lesser role without reason or consultation; 

• making it untenable for you to work by reason of your employers unreasonable attitude (this has to be serious enough);

• a refusal to improve intolerable working conditions;

• imposing a disciplinary or performance process that is grossly unfair and disproportionate;

• suspending you without good reason;

• not providing you with a safe working environment;

• threatening to dismiss you if you do not agree to accept changes to your employment terms and conditions; 

• failing to give you reasonable support to carry out your job without disruption, harassment, or bullying from fellow workers.

Resigning and claiming constructive dismissal is a very high-risk strategy, so unless your conditions have become absolutely intolerable, you should explore other ways of resolving the situation, which could be by raising a grievance first.

You should always take professional advice before resigning and claiming constructive dismissal.

Yes, you do. The contract of employment must have been terminated by you resigning. 

The law allows you to give your contractual or statutory notice when you resign and still claim constructive dismissal. However, you should give no more than the minimum notice required under your contract, or else it will look as if the relationship has not irreparably broken down after all and you may have been deemed to have affirmed the breach.

When you resign, you should spell out in your resignation letter^[4] that you are leaving your job because of the employer’s fundamental breach of the employment contract.    

It is often the case when someone resigned to claim constructive dismissal it is resigning from their employment without giving any notice.

There is no legal requirement that you must state the reason for leaving in your resignation letter, however, it should be noted if you don’t mention anything, a tribunal may be prepared to infer that your employer’s conduct was not the real reason for your leaving your employment but this will be determined on the facts and circumstances of the case.

It is always good practice to have some evidence in writing of your employer’s conduct prior to your leaving, which is why a grievance is usually the correct and expected way to proceed before you resign.

In a constructive dismissal claim, the law allows you to resign with or without notice and this shouldn’t affect your claim, save in some exceptional circumstances. This will depend on the particular circumstances of each case, and would usually apply when it becomes so untenable for you to carry on a relationship with your employer for any amount of time at all that it would be considered most odd if you did.

You would really only have grounds to claim constructive dismissal at an employment tribunal^[5]if you resigned because of your employer's behaviour. It has to be shown that the employer's conduct was so serious that it amounted to a fundamental breach of conduct, which went to the heart of the employment contract. If you were going to leave anyway and it was nothing to do with the employers behaviour, then the answer is probably no.

You should always take professional advice before resigning and claiming constructive dismissal.

A Settlement Agreement^[1] (previously known as a compromise agreement) as the title implies is a way for an employer and employee to come to an arrangement whereby the employment will end on a date agreed by the parties, with usually the employer paying the employee agreed compensation or a termination payment in full and final settlement and the employee leaves the business. There are times when employees stay in the business after signing a Settlement Agreement, but this is not common.

A COT3 agreement is another form of a settlement agreement that is reached with the help of an ACAS conciliator. This is where ACAS is or has been involved with a potential employment tribunal^[2] claim or part of the early conciliation;^[3] the matter can be concluded without the need for independent legal advice. Of course, you are still free to seek legal advice on such a document.

The short answer is, provided the settlement agreement is drafted well. If you use up your holiday entitlement, work your notice period, and your payment is under £30,000, then the answer is yes, the settlement agreement is tax free.

The amount of tax you pay will of course make a big difference in the amount you eventually receive, and the last thing you want after agreeing on a settlement you are happy with is to find out later on that you’re not going to get what you thought.

The rules on taxation of payments made to you by your employer, including in settlement agreements, are covered by the usual tax legislation, namely the Income Tax (Earnings and Pensions) Act.^[4]

The rules are slightly different according to whether or not the settlement agreement is concerned with your leaving that employment.

When you are leaving a job, whatever payments the company make to you are called “Termination Payments” by HMRC,^[5] regardless of whether they are redundancy payments, compensation for unfair dismissal, pay in lieu of notice (commonly abbreviated to PILON), payment for holiday accrued but not taken, or simply payment of the wages owed. As long as the payment is made as a direct result of your employment being terminated, for whatever reason, then the tax laws covering Termination Payments will apply.

The basic rules for a termination payment you receive as part of your settlement agreement is that the first £30,000 of an ‘ex gratia’ termination payment is tax-free.

However, sometimes in practice, it is not always quite so simple to apply and will always depend on the particular circumstances, which is why you need to take advice. First of all the question will be, what is meant by “ex gratia”^[6] – this just means, ‘a gift’ to end your employment. In tax law and employment, as your employer was not obliged to make any payment under the terms of your employment contract with the exception of redundancy payments it is classed as a gift.

Often your total payment will be made up of several different payments. Some of these may be ex-gratia, some will not be.

The answer to this question will all depend on whether or not your original contract of employment entitled you to a payment in lieu of notice.^[7] If your contract says that you are entitled to it, then payment in lieu of notice is a payment your employer is obliged to pay you. As such, it is not ex gratia and will be taxable.

If your employment contract does not provide for payment in lieu of notice, then both you and your employer will be free to negotiate whether or not you will have pay in lieu of notice, and therefore your employer is not obliged to pay you. As such, the payment is ex gratia for tax purposes, and will not be taxed (up to the £30,000 limit).

A restrictive covenant is an agreement between and employer and employee and that the employee will not do certain things within a certain period after leaving employment or within a certain distance from your old place of work. Such agreements are usually concerned with your not taking business away from your employer

Payments for agreeing restrictive covenants are considered to be earnings and are taxable.

This is an alternative and usually an amicable way of resolving an issue, dispute or situation that has arisen between an employer and an employee. There may be many reasons and situations why parties may choose to adopt this method. It may be a redundancy^[8] situation and the employer wants to avoid going through the process required, or may be that the employee has raised a grievance and if the relationship between the parties has gone downhill this may be a preferred way of resolving the matter without having to worry about a constructive dismissal action in an employment tribunal. Another type of situation may be the employer wishes to avoid going down the procedures he would normally be expected in law to follow and he wishes to by-pass this to deal with a situation quickly. There can be many reasons why the parties may choose to resolve the issues by this method.

The answer to this question is a definite yes; you are in fact signing away your Employment Rights, which means, once you have signed the settlement agreement you can’t pursue your employer for any employment related claims. This is why it’s so important that you get the right legal advice.

Sometime individuals can be surprised by the offered a settlement agreement especially if they are leaving their employer on amicable terms. However, employers will often use settlement agreements as a matter of course just to be on the safe side if there could be a possibility of a claim down the line.

Also, a settlement agreement is not legally binding unless the employee has had advice from a relevant independent adviser as set out in the legislation.^[1]

It is important if you feel that you have a potential claim against your employer, let your solicitor know all the details because they will then be able to advise on whether the money being offered in the agreement is appropriate.

The cost of the legal will vary depending on the complexity of the particular facts of the situation. The employer will always inform and tell their employee that they have to get legal advice because it isn’t valid if the employee doesn’t get legal advice.

The normal practice is the employer usually agrees to pay a contribution towards the legal costs of the individual getting that independent legal advice. This is because it is certainly as much in the employer’s interests to ensure the agreement is valid as it is in the employee’s interests. 

The amount of the contribution paid by the employer will range depending on the complexity of the agreement and the part of the country you are based, but typically it is between £250 and £500 and in most cases it will cover all the costs so it is important that you discuss this with your solicitor.

There is no right or wrong answer here but as you are waiving all your right away regarding bringing any claims, the amount being offered should reflect the value of any potential tribunal claims you may have.^[1]

You will need to discuss this with your solicitor and the starting point will be looking at:

Are there any potential claims you could bring against your employer?

If yes, what is the likelihood of winning the claim at a tribunal?

If you are successful, how much would you be likely to recover?

How long would it take and what would be the cost of pursuing the claim?

The answers to these questions and maybe other others raised by your advisor will affect the amount that you think you should expect in the settlement agreement and may help you decide whether to negotiate or not.

It could be the case that the employee is very happy with what they have been offered in a settlement agreement and just want to sign and move on.

There are, however, situations where the employees feel that the employer is not being fair and feel they deserve and are entitled to more.

So the answer is yes of cause you negotiate of the settlement agreement and whether you are successful will depend on a range of circumstances and of cause how far you want to challenge your employer.

The negotiation strategy may involve threatening to make an employment tribunal claim and most often will involve raising a formal grievance.^[9]

There are some employers that will not negotiate and some have been known to threaten to withdraw the current offer, so it is important to keep in mind:

The grievance procedure will involve at least two meetings including the appeal process

The employment tribunal procedure is likely to take at least 6 months

The employer may continue with any performance or disciplinary process

Your solicitor and/or trade union representative will be able to advise you on the prospects of success and will also be able to assist you with any internal process.

Your solicitor or trade union rep will be able to advise you on the best strategy for negotiation.

Usually either party may plant the seed and have a without- prejudice discussion^[10] with each other.

The nuts and bolts of it.

Once the idea has been planted and taken on board by the employer and employee there will be some negotiations conducted to agree on terms of the settlement. The employer is then required to present the employee with a written document. The employee will need to take independent legal advice on it.

This is important for 2 reasons,

1. there is a requirement in law for the employee to seek independent legal advice and
2. the lawyer advising needs to give a certificate that he has given independent advice and has the appropriate indemnity cover. Once happy with the terms, the employee will sign the document, the lawyer then signs off the certificate after the employee has signed and it is then sent to the employer or their representative if acting through one for the employer to complete the documentation process by signing. Once the employer has signed the document becomes a binding agreement in law and the process is completed by the employer forwarding a signed copy to the employee for their records and of course the employee being paid the compensation monies within the time agreed in the Settlement Agreement. It is very usual with a few exceptions for the employer to insist that not only the terms of the settlement as kept confidential but the very existence of it. So the employee must not disclose to the outside world of the agreement and its terms. There are many important terms in the agreement on which legal advice must be sought, not least tax implication in respect the various payments to be made to the employee under the agreement. They are formal legal documents and fully binding in law when signed by both parties which deal with legal rights and so it is very important that legal advice is taken at a very early stage.

There is no legal obligation on an employer to provide a reference^[11] for an employee or ex-employee. In reality employers can refuse to provide a reference if they want to. It is, however, common practice to include as part of the settlement agreement an agreed reference.

The reference is usually annexed to the agreement and will often be very basic and provides minimal information such as start date, finish date and job title, so if you want a reference let your solicitor know and he can make sure that it is included.

Early conciliation applies to most employment disputes, including claims for:

• unfair dismissal

• workplace discrimination

• redundancy payments or disputes over selection procedures

• deductions from wages or unpaid notice or holiday pay

• rights to time off or flexible working

• equal pay.

• discrimination

There are several steps to the early conciliation process.

Step one: You contact ACAS either by completing an online form or by telephone. A conciliation officer will contact you to confirm basic information about your case and explain the early conciliation process. If you prefer, you can ask them to talk to your adviser instead.

Step two: If you say that you would like to try to conciliate the dispute about which you want to make a claim, ACAS will contact your employer. If you and your employer agree to take part in conciliation, an ACAS conciliator will contact you both. If you resolve your dispute, ACAS will prepare an agreement for you both to sign. This is referred to as a COT3, similar to a settlement agreement.

Step three: If you do not resolve your dispute, or if you or your employer do not want to take part in conciliation (see next step), ACAS will issue an early conciliation certificate. The certificate has a number which you must include on your ET1 claim form. If you do not include this number, the employment tribunal will reject your claim.

Step four: Taking part in conciliation is entirely voluntary so neither you nor your employer has to take part in conciliation. The only thing you must do is notify ACAS that you intend to bring a claim. ACAS will issue a certificate and you can proceed with your claim. You must include the certificate number on your ET1 form or the employment tribunal will reject it.

The early conciliation form only requires details of the parties to the dispute, that is, your and your employer’s name and contact details. There is no section on the form to include details of your potential claim.

You should include the correct name for your employer. If you then make a claim to the tribunal, the name of the employer on your ET1 will need to correspond to the name on the early conciliation notification form. If the names are different this could lead to the claim being rejected by the tribunal.

If your dispute is with more than one employer or person, you must complete a separate form for each. If conciliation fails and you take your case to an employment tribunal, you will need to give the early conciliation certificate number for each employer or person.

The conciliator will:

• talk through the issues with both sides to try to achieve a solution

• explain the conciliation process

• explain the way employment tribunals operate, and what they consider when deciding a case

• discuss the options open to you, including arbitration, if appropriate

• help you to understand how the other side views the case, and explore with you how it might be resolved without a hearing

• tell you about any proposals the other side has for a settlement.

The conciliator won’t:

• make a judgement on the case, or the likely outcome of a hearing

• advise you whether to accept any offers of settlement

• advise you on the effect of early conciliation on time limits for your claim or calculate the new time limit for you

• act as your representative, take sides, or help you prepare your case.

In most cases, it will be an employee who asks for early conciliation. However, an employer can do so too.

However, if they do, you should be aware that time for making your claim to the employment tribunal will not be stopped and so there will be no extension of time limit.

If this is the case, you should ask for early conciliation yourself, in order to stop the clock and get the extension of time to make your claim.

There are a few circumstances in which you don’t need to notify ACAS. These are:

• another person you're making the claim with already has an ACAS early conciliation certificate

• if ACAS doesn't have the power to conciliate on some or all of your claim

• your employer has already contacted ACAS (but see above for what this means for you)

• you are claiming unfair dismissal and making an application for interim relief

• your claim is against the Security Service, the Special Intelligence Service or GCHQ.

ACAS suggest that the quickest and simplest way to contact it for early conciliation is by completing the early conciliation notification form on its website at www.acas.org.uk/earlyconciliation. Otherwise, you can call them on 0300 123 11 22.

To bring a claim for unfair dismissal you must have been employed continuously for two years on the date you were dismissed. As of 1 January 2027, this changes to 6 months' service. There are certain circumstances where you are entitled to bring a claim for automatic unfair dismissal and will not require the minimum service in employment (see automatic unfair dismissal below).

An employee is an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. A contract is an agreement that sets out the terms and conditions of the employment. If you are employed on a zero hours’ contract, or work as a contractor, then in most circumstances you will be considered a worker and will not be able to bring a claim for unfair dismissal. However, this is dependant on the specific contract wording and the reality of the working relationship. 

There are five potentially fair reasons for dismissal. These are conduct, capability, redundancy, statutory restriction (illegality) or some other substantial reason “SOSR”.

Conduct

It is potentially fair to dismiss an employee for a reason that relates to the conduct of the employee. This may be a single act of gross misconduct or a series of acts of less serious misconduct. Misconduct may include disobeying reasonable management orders, breach of contract terms, and unauthorised absence from work or repeated poor attendance.

Gross misconduct is misconduct so serious as to justify summary dismissal (without notice) of an employee and is more likely to include serious negligence, theft, fraud, physical violence or serious breach of health and safety regulations.

Capability

A dismissal is potentially fair if it relates to the capability or qualifications of the employee for performing their job. This will be assessed by reference to an employee’s skill, aptitude, health or any other physical or mental quality. Capability dismissals may be because of poor performance, or because of an employee’s ill-health. In the case of ill health dismissals, if the illness amounts to a disability under the Equality Act 2010 then this may amount to unlawful disability discrimination. A capability dismissal may also relate to an employee’s qualifications, for example if, after recruitment it become apparent they do not have the necessary qualifications, or they are employed on the understanding they will obtain certain qualifications but fail to do so.

Redundancy

A dismissal on the grounds of redundancy is potentially fair where it is wholly or mainly attributable to the employer either making a business closure, workplace closure or reduced requirement for employees.

Statutory Restriction (Illegality)

Where an employee could not continue to work in the position which they held without either the employer or the employee breaching a duty or restriction imposed by law, this will be a potentially fair reason to dismiss.

However, the employer must show that the employee’s continued employment would actually breach a statutory restriction. Dismissals under this heading would include where continued employment would breach immigration rules, where an employee has had their driving licence revoked and is required to drive to do their job, where an employee has failed to obtain vocational qualifications or because the employer discovers that the employee has a criminal record.

SOSR

This is designed to catch other potentially fair dismissals that would not fall into any of the other categories, such as where there has been a breakdown in mutual trust and confidence between an employer and employee.

If an employer has a potentially fair reason to dismiss an employee, they must be able to show that they have acted reasonably in treating that reason as sufficient to justify dismissal. Courts and Tribunals have interpreted this as meaning that the dismissal must be procedurally fair and is often referred to as the “reasonableness test”.

An employer should follow (as a minimum) the ACAS Code of Practice, in that they should properly investigate the matter, gather all the available evidence, inform the employee of the allegations, hold a disciplinary hearing, allow the employee to be accompanied, allow the employee the opportunity to present their defence, inform the employee of the decision and give them the opportunity to appeal. If the employer fails to follow any procedure, any subsequent dismissal may be procedurally unfair.

Legislation also protects employees from “automatically” unfair dismissal when the reason for their dismissal is one of those prescribed by the statutory provisions (known as the “inadmissible reasons” for dismissal). Some examples of inadmissible reasons are set out below:

• Connected with pregnancy, maternity leave, paternity leave, adoption leave, parental leave or shared parental leave (to include time off for antenatal or adoption appointments or time off for dependants);
• For a health and safety reason;
• For a reason connected with rights under the Working Time Regulations;
• For performing functions as an employee representative in a collective redundancy or TUPE transfer;
• For making a protected disclosure, i.e. whistleblowing;
• For asserting a statutory right;
• For trade union membership or non-membership, or participation in trade union activities;
• Related to status as a part time worker or fixed term employee;
• Or following selection for redundancy on any of the grounds listed above.

If you believe you may have been dismissed for an automatically unfair reason please contact us for further advice so we can support you in an appeal meeting.

Where an employee alleges that they have been dismissed for an inadmissible reason, they will not need the qualifying service to bring a claim for automatic unfair dismissal.

Automatic unfair dismissal claims differ from ordinary unfair dismissals as the “reasonableness test” has no relevance. A dismissal for an inadmissible reason is always deemed to be unfair as long as that can be shown. If it is established that the reason or main reason for dismissal is inadmissible then no further enquiry is necessary. A minimum basic award is payable in some kinds of automatically unfair dismissal cases, and the upper limit on the compensatory award does not apply in some cases. In cases concerning dismissal for whistleblowing or trade union reasons, the employee may apply for “interim relief” to protect their income pending a full hearing, effectively continuing their salary until the hearing.

If you’re threatened with dismissal (or are dismissed) you should seek advice as soon as possible. It is advisable to keep a copy of any correspondence relating to your dismissal or potential dismissal. You can also speak to your union representative if you’re a member of a trade union.

If you are facing a disciplinary or redundancy meeting, we can arrange for an experienced Trade Union Representative (on a pay as you go basis), to assist you with preparing your case and representing you at the disciplinary or redundancy meeting. We can also assist you at the internal appeal stage with the same service and provide a free initial 15 consulation on the phone. 

If the tribunal finds that an employee was unfairly dismissed, it will then decide what remedy to award. In considering remedies, the tribunal will consider:

• Reinstatement

The Tribunal can order that the employer must reinstate the employee. This effectively means that the employee was never dismissed. This involves re-employing them on the same terms and conditions without any loss of pay, continuity of employment or pension rights. The employee should also receive the benefit of any pay rise they would have received had they not been dismissed.

• Re-engagement

The Tribunal can order that the claimant must be engaged by the employer, its successor, or an associated employer in employment that is comparable to the job from which the employee was dismissed, or in other suitable employment.

• Compensation

The most frequently awarded remedy is financial compensation. This will usually consist of a basic award and a compensatory award.

Reinstatement and re-engagement will only be considered if the employee has requested it. If either is requested, then the Tribunal will consider whether the employee contributed to their dismissal.

Two things that the Tribunal does not have the power to award to a successful Claimant are an apology or an agreed reference. It may be possible to achieve either of these as part of a settlement, but the Tribunal themselves have no statutory powers to order the company to provide either of these.

To make a claim for unfair dismissal, you must go through ACAS Early Conciliation and lodge an ET1 with the Employment Tribunal.

At the tribunal, an employee must prove that they are eligible to claim and that they have been dismissed. It is for the employer to prove the reason for the dismissal and for the tribunal to decide whether the employer acted reasonably or unreasonably in dismissing the employee.

A claim for unfair dismissal (ET1 form) must be lodged with the Employment Tribunal 3 months (less one day) from the date of dismissal. However, if you want to make a claim to an employment tribunal, you must notify Acas of your potential claim (ACAS Early Conciliation) first and within the three months less one day period. Please see separate FAQ’S on early conciliation.

If an employee’s employment has been terminated with notice, the date of dismissal is the date that the notice expires. If it is terminated without notice, the date of termination is the date it takes effect. When working under a fixed-term or specific task contract then the date of dismissal is the date the contract expires.