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Top 3 reasons why people lose their jobs
There are three main reasons why people lose their jobs: capability, conduct and redundancy. Does one of these apply to you? If yes, read on to discover whether you might be able to make a claim for unfair dismissal.
Capability: The ability to do the job
If your employer dismissed you because of poor performance at work, they must follow a certain process. For example, they must first carry out a proper investigation, give you time and support to help you improve, and use reliable evidence to support their claim.
• Were there reasonable grounds for your employer to believe you were incapable of doing the job?
They will have to provide evidence such as examples of your work, statements from managers, or details of missed performance targets. If the tribunal finds that you were incapable of doing the job, you may lose your claim or any compensation you receive is likely to be reduced.
• Do you think your employer used your performance as an excuse to dismiss you for another reason?
If yes, you will need to provide evidence to support this (such as appraisals, work records, or witness statements). You will have to look for inaccuracies and inconsistencies in your employer’s evidence, or prove that the targets they set you were unreasonable.
• Did they carry out a proper investigation of your performance?
The tribunal will ask who your employer spoke to, what evidence they found, and whether they could have done anything else to find out why you were under-performing.
If it was due to ill health, family problems or stress, the tribunal will want to see what support your employer gave you. In some cases, your employer should adjust your working environment under discrimination law – if they didn’t, you may be able to claim for discrimination too.
• Did they tell you about your under-performance and give you clear warnings?
Your employer should tell you that your performance needed to improve and the consequences of failing to do so. They should offer you support such as training or mentoring, and warn you that you could be dismissed if your performance didn’t improve.
The tribunal will want to know whether any such support took place, whether it was adequate, and whether or not it helped.
If you were not offered support, the tribunal will want to know what support you needed, how it would have helped, how easy it would have been for your employer to provide it, and why you think they didn’t. (If you can prove that extra support would have helped you improve but your employer didn’t offer it, this will help your case.)
• Did they give you a reasonable chance to improve?
If you were not given enough time to improve your work, it will help your case. The amount of time and the number of warnings you should receive will depend on: how long you were employed, whether there were any recent changes in your job or workplace, whether you co-operated, whether there were other reasons for your poor performance, and whether or not you made any improvement.
• Did they offer you suitable alternative work?
If you really don’t have the skills to do the job, it may not be reasonable for your employer to offer you alternative work. But if you struggled with a change of duties, for example, it may have been reasonable for them to move you to another job rather than dismissing you.
• Was the decision to dismiss you within the range of responses of a reasonable employer?
The Tribunal will not give its views on whether you should have been dismissed or not. Instead it will decide whether the dismissal fell within the range of reasonable responses of a reasonable employer. In other words, even if the Tribunal itself would not have dismissed you, it must ask whether any reasonable employer could have decided to dismiss given all the circumstances. If the answer is yes, the dismissal will be considered fair.
• Did they follow the ACAS/LRA code for disciplinary and dismissal procedures?
Even if it can be shown that the reason for dismissal is fair, employers must follow a fair procedure. A failure of follow the ACAS Code of Practice on Disciplinary and Grievance procedures in GB can result in increased compensation.
In Northern Ireland, the employer must give notice of the reasons why you are being disciplined and explain that it could result in dismissal, hold a meeting to discuss the issues, tell you’re the decision and inform you of the right to appeal. If they fail to do any of these steps the dismissal will be considered to be automatically unfair.
Conduct: Misbehaviour in the job
If your employer dismissed you because of misconduct at work, they must explain why you were dismissed, and follow a fair dismissal process.
• Did your employer genuinely believe you were guilty of misconduct?
Your employer doesn’t have to prove that you did commit the misconduct, only that the evidence makes it reasonable for them to believe that you did. You will need to show that the evidence was too weak for them to rely on. If you think your employer alleged you did something wrong as an excuse to dismiss you, you will need to provide evidence that shows they had an ulterior motive.
• Does your employer have reasonable grounds to think you are guilty?
Your employer will have to provide evidence such as witness statements, videos or recordings, computer records, emails and other documents.
The tribunal will look for any weaknesses that make the evidence unreliable, such as contradictory statements, or video where you can’t be clearly identified.
• Did you admit or deny the allegation?
If you admitted it…
The tribunal will decide whether you are guilty of all or part of the allegation, and whether your employer followed the proper process when they investigated the incident. If the tribunal thinks you were guilty of the misconduct, your compensation may be reduced.
If you denied it…
You will need to provide evidence about whether witnesses were lying or wrong, whether your employer carried out a proper investigation, and whether other people might have been guilty.
• Was there a proper investigation?
The tribunal will want to know who your employer spoke to, what evidence they gathered, whether other people could have been guilty, and whether or not you admitted to the allegations. It may help your claim if you think your employer failed to gather other evidence or ask other people about the incident.
Even if you admitted that you did what your employer accused you of, but you had a reason, your employer should speak to all the people involved, including any witnesses.
• Was your dismissal a reasonable response to the misconduct?
The tribunal will consider what you did, your disciplinary record, whether you had any previous warnings, and your employer’s disciplinary policy.
It will be considered reasonable if you were dishonest (such as theft or over-claiming expenses), if you abused children, elderly or vulnerable people, or if you breached a health and safety rules that endangered other people.
Redundancy: The job no longer exists
Your employer may need to make compulsory redundancies when they close the business, cease trading in the place where you worked, or need fewer people carrying out a particular role.
In this case, they must make a fair selection of which employees may lose their jobs, and then follow fixed criteria.
• Did your employer gave you adequate notice and warning?
Your employer must tell you why you are being considered for redundancy, and give details of the selection process.
• Did they consider alternatives to redundancy?
Your employer must consider offering you alternative employment, where possible.
• Did your employer require you to reapply for your position?
This is one way your employer can aim to ensure fairness.
• Did they follow a fair redundancy process?
Your employer must not use unfair or discriminatory reasons for selecting employees for redundancy. They may consider: attendance records, previous conduct and disciplinary history, standard of work, skills and experience. They must not decide based on age, disability, gender, part-time or fixed-term contract, pregnancy and maternity, race, religion, sexual orientation, or trade union membership.
If they didn’t follow a fair process, you can make a claim for unfair dismissal.
If you think you have been made redundant unfairly, here are the three steps to take:
1. Appeal in writing
See your contract or staff handbook for advice and time constraints, then write to your employer explaining why you think your redundancy was unfair and what actions you want them to take.
2. Notify ACAS (or the Labour Relations Agency in Northern Ireland)
They will offer to settle the case through Early Conciliation – although neither you nor your employer is obliged to agree to this.
3. Take the case to an employment tribunal
The tribunal will decide whether your claim is genuine and what, if any, compensation you are due.
Need help?
For a FREE assessment of your claim, call 0808 168 7288 or fill in the contact form on the top right of this page.
We have already helped thousands of people to win millions of pounds in compensation.
You have a choice of ways to pay, including ‘no win, no fee’.
We will also discuss the best methods of funding your case and seek to reach a solution that best suits your needs. This can involve a “no-win, no-fee” agreement if appropriate.
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