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How to handle an ex-employee who wants to sue the practice

An ex-employee who claims the practice unfairly dismissed her is suing me in an employment tribunal. If she is successful, what sort of sum will she be awarded?

An ex-employee who claims the practice unfairly dismissed her is suing me in an employment tribunal. If she is successful, what sort of sum will she be awarded?

THE ADVICE

Other than a declaration that the employee has been unfairly dismissed, in any normal unfair dismissal claim there are four types of award that may be made to the successful employee.

The first is reinstatement. This is an order that the employee be returned to her old job. The employer must therefore make this post available. The second is re-engagement. Here the tribunal orders the practice to re-employ the employee, but not in her old job. Failure to comply with either of these awards means that the ex-employee will be entitled to additional compensation.

However, these two remedies are relatively rare, being awarded in fewer than 4% of all successful claims. It is far more likely the remedies that will be awarded to an employee are the basic award and the compensatory award.

The basic award is a sum of money that is mathematically calculated and depends upon the employee's age, length of service and their weekly gross wage (up to a maximum of £330 a week from 1 February).

If the reason for the unfair dismissal is a breach in the statutory disciplinary procedures then the employee is entitled to a minimum of four weeks' gross pay (again up to the maximum figure). It is therefore straightforward to calculate in any given circumstance.

The compensatory award is less predictable and is based on what the tribunal thinks is ‘just and equitable'. The aim of the award is to put the employee in the position that she would have been in had she not been dismissed. It is not to provide her with any additional income, so the award is based on the ex-employee's net income from the practice.

The tribunal will determine a period of time over which the ex-employee should receive her net wages. This may involve the period from the date of dismissal up to the date of the hearing and potentially a period of time into the future after the date of the tribunal hearing.

Compensatory award

The compensatory award will also include any benefits the ex-employee was entitled to, such as pension contributions, bonuses, and a sum of £250 for what is called loss of statutory rights – a figure to compensate the employee for the fact that it will take her another year to obtain employment protection.

The amount awarded under the compensatory award can be reduced or increased on a number of grounds.

It can be reduced if the tribunals find the dismissal was contributed to by the employee's conduct. In certain circumstances the award will be reduced, or even the dismissal be deemed not unfair, if the practice can show it is only liable for unfair dismissal owing to a procedural failure. If the employee would still have been dismissed even if the procedural failure had not taken place, the dismissal may not in this case be deemed unfair.

However, an ex-employee who succeeds in any claim is not entitled to write a blank cheque at the practice's expense. The tribunal is highly unlikely to say that an ex-employee is entitled to sit on their hands and not seek employment until they retire and expect the practice to pay them.

Michael Salter and Chris Bryden are barristers at 2 Gray's Inn Square Chambers: www.2gis.co.uk Legal points are provided for information and discussion only and are given without obligation. For specific legal advice consult your solicitor

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