First of all, we would ask if you have a year's continuous service with your former employer. If you do not, then it is unlikely that you can claim unfair dismissal, no matter how unfairly you feel you have been treated.

Employees must have a year's service in order to claim unfair dismissal, except in limited circumstances.

If you do have a year's service, your former employer must show that it had a “fair reason” for dismissing you and that it used a “fair procedure”. If it cannot demonstrate both, you may have a good claim for unfair dismissal.

There are five potentially fair reasons for dismissal: one of these is “incapability”. Your former employer may argue that you were “incapable” of performing your role due to your high levels of sickness absence. This is a potentially fair reason.

Employers must follow certain mandatory steps before dismissing employees. Your employer should have:

1. Invited you to a meeting (in writing) to discuss the issues, warned you that it was considering dismissing you and advised you of your right to bring a colleague or trade union representative

2. Written to you after the meeting with its decision, and advised you of your right to appeal against the decision

3. Held an appeal hearing and written to you with its verdict.

These are minimum requirements. If further investigation was needed (for example obtaining medical evidence as to the reasons for your ill health and absences.

If you have been “automatically unfairly dismissed”, you are entitled to financial compensation, principally based on your loss of earnings resulting from your unfair dismissal. You must try to find another job, and your compensation may be reduced if you do not make reasonable efforts.

You may also be able to bring a personal injury claim. If you can demonstrate that your stress resulted from working conditions, you may claim additional compensation.

Disability discrimination may also influence a tribunal decision. It is possible, since changes in the law last year, to argue that “stress” constitutes a disability. If an employee suffers discrimination as a result of a disability then he or she may claim additional compensation. Not all cases of stress will count as a “disability” though, and you will need to take legal and medical advice on this.

Contributor:James Baker, solicitor, Taylor Walton