This advice applies to Scotland. Change country
Employment tribunals - compensatory award for unfair dismissal - might your compensation be reduced because you have not attended meetings or you have been too ill to work?
When you've calculated how much your compensatory award might be, you need to then take into account any reasons why a tribunal might reduce it or increase it.
This page looks at why a tribunal might reduce your award because you've failed to attend a disciplinary or dismissal meeting or you've been too ill to work.
You and your employer are both expected to follow the ACAS Code of Practice on disciplinary and grievance procedures if you're being dismissed.
This means your employer should follow a proper procedure by:
- sending you a letter asking you to come to a meeting to discuss the problem
- investigating all the circumstances
- telling you their decision
- giving you a chance to appeal against the decision if you wish.
You should follow the Code by attending any disciplinary meetings and appealing against your dismissal before you make a claim to a tribunal, unless it's not reasonable for you to do so within the time limit for making a claim.
You should always attend the disciplinary meeting, even if you think it's a waste of time, unless you've a good reason why you can't attend. Good reasons include:
- because you fear harassment
- the person who's accompanying you can't attend the meeting
- there's no time to attend the meeting before the deadline for making a claim to the tribunal.
If you're too ill to attend the meeting
Your employer should rearrange the date for when you're well enough to attend. You may need to get medical evidence from your GP confirming you're too ill to go.
If the person accompanying you can't attend the meeting
If the person who you want to go with you to the meeting isn't available on the date your employer chooses, you should suggest another date within five days of the original date of the meeting.
If you don't follow the ACAS Code
If you don't attend the meeting or make an appeal before making a claim to a tribunal, and you don't have a good reason why you've not done so, a tribunal may think you've not made enough effort to comply with you employer's disciplinary and dismissal procedure.
It may decide to reduce your compensatory award by up to 25 per cent because you've not complied with the ACAS Code.
- More information about the ACAS Code of Practice and the procedure employers and employees should follow
You can only claim you've lost money from losing your job if you were earning money in the first place. Whether you can claim a compensatory award in these circumstances depends on whether your ill health was caused by your dismissal.
If your ill health was caused by your dismissal
You may have become ill since you were dismissed, for example, with depression. If you can show that if you hadn't been dismissed, you wouldn't have become ill and would have continued to work as normal, you'll be able to claim your full loss of earnings until the date you're likely to be fit enough to find another job.
However, you must get clear medical evidence from your GP or consultant to prove that you're unable to work because of the ill health caused by your dismissal.
Gina suffered depression as a result of her dismissal. Her consultant confirms her depression is caused by her dismissal and that it should improve so that she will be fit to work again about 12 months after she was dismissed. The tribunal decides that once she is fit to work, it will take her about 12 months to find another job, so they award her two years' loss of earnings for her compensatory award.
If your ill health is not caused by your dismissal
If you were sick before you were dismissed, or have become sick since, but this has nothing to do with your dismissal, this will affect how you calculate your loss of earnings for a compensatory award. This is because if you would have been off sick even if you hadn't been dismissed, your loss of earnings will be based on how much sick pay you would have got, rather than your normal wage.
You can also claim lost earnings from the date you would have been able to go back to work,or for the length of time it's likely to take you to find a new job.
Mabel was unfairly dismissed because she had been off work sick for three months with a bad back. The tribunal decide that had she not been dismissed, she would have been fit to work six months after the date of her dismissal. She was only entitled to SSP and did not get any contractual sick pay. The tribunal also decide that it will take her ten months from the date she became fit again to find another job. They award her:
- losses from the date of her dismissal to the date she would be fit enough to go back to work. This will be her remaining three months of SSP, and
- losses from the date she became fit to work again, and would therefore have earned her normal pay if she had not been dismissed. This will cover the period she will be unemployed while she finds a new job, so it will be ten months of her normal earnings, as the tribunal think it will take her ten months to find a new job once she is fit again.
Other useful information
- How long should you be compensated for?
- Are there any reasons why your compensation may be reduced?
- Might your compensation be reduced because you've not attended meetings or you've been too ill to work
- Is your compensation below the cap and will any welfare benefits you've received reduce it?
- Time limits within which you must make a claim to an employment tribunal