Unfair Dismissal

Employment rights Act 1996Employment Act 2002 and supporting regulations

which came into effect in late 2003

Introduction

The right not to be unfairly dismissed is intended to act as a constraint on employers who have the authority to hire and fire as they please

Unfair dismissal is recognised as such as early as 1977 by Philips J in Davis & Sons Ltd. v. Atkins 1977 – “the expression ‘unfair dismissal’ is in no sense a common-sense expression capable of being understood by the man in the street”

Introduction

The present unfair dismissal law is contained in the ERA 1996 as amended

The contemporary approach is to encourage parties to avoid litigation or to use the new alternative ACAS Arbitration Procedure;

Under the EA 2002 and supporting Regulations new statutory dispute resolution procedures are introduced

Introduction

The right not to be unfairly dismissed is perhaps the most fundamental

The role of the Employment tribunal The emphasis in unfair dismissal complaints is very

much on the particular applicants case Evaluation of an employer’s conduct should be left

exclusively to the Tribunal in its capacity as industrial jury

Introduction Under s.94(1), ERA 1996, every employee shall have the right

not to be unfairly dismissed by his employer An employee is entitled to have complaint of unfair dismissal

heard before an employment tribunal even if the employer offers to pay the maximum compensation recoverable with no admission of unfair dismissal

The claim is not simply for a monetary award. It is a claim that the dismissal was unfair

The employee is entitled to a finding on that matter and to maintain his claim to the tribunal for that purpose

Unfair Dismissal Qualifications

Full-time and part-time employees enjoy the same statutory rights

Under s. 108(1) ERA 1996 …, section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination

Unfair Dismissal Qualifications

To fall within the provisions of s. 94 an employee had to show continuous employment in a job which is not an excluded category of work

The minimum period of continuous employment is not less than one year ending with the effective date of termination – this is the date that the contract actually comes to an end and if a summery dismissal is unjustified it may be necessary to add the statutory period of notice onto the date of dismissal

If the employee can establish that the reason is automatically unfair (pregnancy, trade union activities), then under s. 108(3) the period of continuous employment does not apply

Unfair Dismissal Qualifications

A further requirement under s. 109(1) ERA 1996 is that if on, or before the effective date of termination, the employee has reached the ‘normal retiring age’ or, if more than the age of 65 (whether male or female), then there is no right to present a claim

Unfair Dismissal Qualifications

In addition to qualifying through service, an employee must not fall within one of the excluded categories of employment:

Persons employed in the police force Shared fishermen e.g. members and crew paid by a

share of the profits Employees who work ordinarily outside Great Britain

Unfair Dismissal Procedure

An employee must initiate proceedings by submitting an IT1 form to the Central Office of Employment Tribunals or Regional Office of Employment Tribunals within three months of the effective date of termination

s.111 (2), an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination…

Effective date of termination

Under s.92(6) the “effective date of termination”(a) In relation to an employee whose contract is terminated by

notice, means the date on which the notice expires;(b) In relation to an employee whose contract is terminated

without notice, means the date on which the termination takes effect; (summery dismissal) and

(c) In relation to an employee under a contract for a fixed term, which expires without being renewed under the same contract, means the date on which that term expires.

The Tribunal Having established that a dismissal has occurred the tribunal

has to determine:

(a) the reason for the dismissal;

(b) whether the reason constitutes a statutory reason (in the ERA 1966)

(c ) the tests of substantive and procedural fairness

(d) remedies of compensation, reinstatement and re-engagement

The reason for dismissal- s.92(1) ERA 1996 To assist the complainant in a claim for unfair dismissal the

complainant is entitled under Statute to be provided with the reason for dismissal

Under s. 92(1) an employee is entitled to be provided by the employer with a written statement giving particulars of the reasons for the employee’s dismissal

Under s.92(4) there is no need to make such a request if the dismissal occurs while the employee is pregnant or after childbirth

An employee who alleges constructive dismissal is not entitled to be provided with a written statement

Statutory Reasons for Dismissal

The employee:

The formal burden of proof on an applicant in an unfair dismissal complaint is to establish the fact of dismissal under s. 95, whether express, implied or constructive

The respondent, the employer: to show that the reason for dismissal falls within the Statute

Statutory Reasons for Dismissal – s. 98 ERA 1996 – the heart of unfair dismissal law

Under s.98(1) In determining for the purposes of this part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show-

(a) what was the reason or, the principle reason for the dismissal, and

(b) that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

Statutory Reasons for Dismissal – s. 98 ERA 1996 – the heart of unfair dismissal law

S. 98 (2) In subsection (10(b) the reference to a reason falling within this subsection is a reference to a reason which-

(a) related to the capability or qualification of the employee for performing work of the kind which he was employed by the employer to do, or

(b) related to the conduct of the employee, or (c ) was that the employee was redundant, or (d) was that the employee could not continue to work in the

position which he held without contravention (either on his part or on that of his employee) of a duty or restriction imposed by or under an enactment.

Potentially fair Reasons for DismissalCapability or qualification s.98(2)a Consideration of the employer’s appraisal process,

the amount of training and supervision required and the extent to which employees are given the opportunity to improve their performance

Ill health of the employee-medical condition, permanently unfit for work

Qualification – any degree, diploma or other academic, technical or professional qualification relevant to the position the employee holds

Misconduct s.98 (2)(b)

Breach of exclusivity and trust and confidence Stealing from the employer A breach of safety instructions Refusal to obey reasonable instructions Refusal to stop wearing a provocative badge Immorality Drunkenness absenteeism

Redundancy s. 98(2)(c)

The employer may show that the reason was that the employee was redundant

Redundancy situation arises when an employer closes part or all of his business operation, the purposes for which the employee was employed, or alternatively the requirements of the business for workers of a particular kind have ceased or diminished

For the purposes of unfair dismissal however, not only must the dismissal be by reason of redundancy but the selection of the employee in question must also be fair

Employment in contravention of the law s. 98(2)(d)

A good example is where driving is an integral part of the employee’s work and he is disqualified from driving

As usual the reasonableness of the employer’s decision to dismiss must be viewed in the light of the particular circumstances, not least the availability alternative work

Some other substantial reason s.98(1)(b)

Genuine reason which the employer honestly believes to be substantial

A clash of personalities in the office Pressure on an employer to dismiss an

employee from some third parties such as trade unions, customers, clients

Disciplinary procedure

Standard procedure The modified Grievance procedure

Automatically Unfair Dismissal

Pregnancy or childbirth s. 99(10 Health and safety s.100(1)trade union activities The assertion of a statutory right s.104(1) Making a protected disclosure s.103A Non compliance with the National Minimum Wage s.104A Non compliance with the Working Time Regulations s.101A Participation in official industrial action s.238A(2) For a reason connected with a business transfer

Remedies for Unfair Dismissal if a complaint of unfair dismissal is successful

The tribunal has the authority to make an order for: Reinstatement or re-engagement or make an

award of compensation Under s.114(1) an order for Reinstatement is an

order that the employer shall treat the complainant in all respects as if he had not been dismissed

Compensation –the most common form of redress for unfair dismissal

It consists of a basic award, a compensatory award, an additional award and where the dismissal related to the membership or non-membership of a trade union, a special award

Basic award (BA) under s. 119(1)

It is payable in all classes of unfair dismissal irrespective of loss and is calculated under s.119(1) with reference to the complainant’s continuous employment. The computation of the BA is the same as for redundancy payment, so the present maximum is £7,200

To calculate the BA it is necessary to determine: the employees gross pay up to a maximum of £ 240, the length of service up to a maximum of 20 years and his age.

Compensatory award under s.123

The tribunal must have regard to the loss sustained by the complainant in consequence of the dismissal (loss of fringe benefits attached to the job).

The maximum compensatory award is £ 52,600

Additional award under s. 117

It is payable where an employer does not comply with an order of reinstatement or re-engagement and fails to establish that it was not reasonably practicable to comply with the order

The amount of the award is not less than 26 nor more than 52 weeks pay