I have been dismissed from work but was it fair? – An example case
Posted on 11th September 2018
Francesca, a Senior Communications Executive from St Albans, was employed by Think Smart Communications Limited. Her job included travelling to meet with her nationwide client base. One morning, she was due to take the train to Manchester for a meeting and booked her tickets but the meeting was changed at the last minute to take place via a Skype conference call from her London HQ. The original meeting had not been placed in her outlook diary.
Francesca attended the meeting and later that month, submitted her expenses claiming her train tickets back for her trip to Manchester. The following week, Francesca was suspended and subsequently invited to a disciplinary hearing where she was dismissed for fraudulently claiming expenses for a trip to a client meeting which had not taken place.
Francesca needed some employment advice and here are a few things to note:
What do I need to show?
The burden is only on you to demonstrate that you are eligible to bring a claim. You need to show that you are an employee (rather than a worker or a self-employed individual), that you have been employed for two complete, continuous years at the date of your dismissal and that you have been dismissed.
What do they need to prove?
There is more to do here for your employer. Remember, they took the decision to dismiss you after you’d been employed for two years so they better have a good reason to have done so.
There are only a few, limited ways to fairly dismiss. They include redundancy, capability or qualifications (which don’t apply here), some other substantial reason or conduct. The reason in your case is likely to be your conduct. The allegations are that you committed an act of misconduct (fraud) which is potentially a fair reason to dismiss you.
But I didn’t do it!
This is where it becomes a little more tricky and technical. The law doesn’t require your former employer to prove that you did it, they only need to show that they genuinely believed that you did at the time, based upon the evidence available to them.
Now I know that you said that they didn’t properly investigate the points that you made about the meeting booking and last minute change and this is important. Your former employer must show that they based their belief on a reasonable investigation, which typically includes independently investigating the allegations, giving you the chance to see the evidence and have your say and present your evidence (including any witnesses). You have the right to be represented by a colleague or trade union representative and have the right of an independent appeal.
If they’ve done all of that, then your dismissal may be lawful but only if it was a reasonable response to the allegations. This doesn’t mean that if the Judge at any Tribunal decides that she wouldn’t have dismissed you, it just means that if the decision was so outrageous that no reasonable employer would have dismissed, then your dismissal would be unfair.
How will I be compensated?
Well, you can ask the Judge to order your job to be given back to you, or another job in the same company. Although most people want financial compensation to recover what they have lost. You could claim a basic award (like a redundancy payment) and then recover your loss of earnings up until you find a new job paying you the same amount. If you don’t find a new job any time soon, a Judge will award an amount that she considers to be appropriate in the circumstances.
I want to fight this. What do I do next?
This is important. You can’t start legal proceedings in the Employment Tribunal until you have been through Early Conciliation involving an ACAS Conciliator. The aim is to try to help settle disputes before they go any further and this could result in a successful outcome for you. The time limit for starting this process is three months less one day from your date of termination.
Otherwise, once your certificate has been issued by ACAS, proving your compliance with this process, you can issue your claim in the Employment Tribunal. Again, there are very strict time limits for doing so and so it is crucial that you get some advice because you won’t have very long!
Do I need representation?
There is no requirement for you to be represented but the law and procedure can be very complicated and intimidating and you will want to know whether the choices that you make at each stage are the right ones. There are other possible risks, including costs or fines being awarded against you in certain circumstances.
A lawyer can give you advice on settlement offers, on compliance with orders of the Tribunal and represent you at a hearing. They can advise you what you can claim, when and how to set it out persuasively. All of this means that you will be in a far stronger position if you have a lawyer by your side.