#13681 - Unfair Dismissal And Remedies - BPC Employment Law

Unfair Dismissal

Eligibility

• Individual must:

  • Be an employee (not SE or a worker)

  • Have the relevant continuous employment – i.e., when employment began

    • Before 6^th April 2012 – 1 year

    • After 6^th April 2012 – 2 years

  • Commence the claim within 3 calendar months of dismissal

    • 3 months of EDT (“effective date of termination”)

    • Date of dismissal…jump back 1 day and add 3 months

    • Date of dismissal, not date of appeal unless contract provides for continuing service until determination of appeal

  • Not be an excluded category

    • E.g. police, armed forces

• EDT

  • Can be:

    • When notice expires (if given)

    • Date of dismissal if not notice

    • Date of PILON payment

    • Expiry of fixed term contract

  • Possible to extend?

    • At tribunal discretion – unusual

    • Test:

      • Not reasonable and practicable to present within 3 months

      • C to prove

    • Present claim within such further period as the Tribunal considers reasonable in order for an extension

Dismissal

• Express, with or without notice

• Expiry of fixed term contract

• Constructive dismissal, e.g.:

  • Reduction in pay – Industrial Rubber Products v Gillon

  • Complete change in nature of job – Ford v Milhorn Toleman Ltd.

Fairness – limb 1

• 5 acceptable reasons to dismiss

• IF not one of the reasons, dismissal is unfair

  • Capability

    • Qualifications lacking

    • Illness prevents work

    • Incompetence

  • Conduct

    • Need not be gross misconduct

    • Can include conduct outside working hours

  • Redundancy

    • Job or place of work goes

  • Illegality

    • Rare – e.g. driver loses his licence so continuing job is illegal

  • SOSR (some other substantial reasons)

    • E.g. someone taking temp work to cover maternity leave, imprisonment, age of retirement, etc.

  • Automatically unfair reasons

    • Union membership

    • Health and Safety related dismissals

    • Maternity-related dismissals

    • Etc.

• Written reasons – s.92 ERA

  • If 1 year employment, entitled to request reasons within 14 days of dismissal

  • Employer has 14 days to respond

  • Failure to provide = separate claim for failure

    • 2 weeks pay given (no limit)

    • 3 month time limit to claim

Fairness – limb 2

• s.98(4)

  • Consider the conduct of the employer

  • Do not substitute decision

  • Will be a band of reasonable responses, as long as decision was within, it is fair

• In addition to limb 1

  • Did the employer act reasonably?

    • Midland Bank v Madden (2000)

      • Band of reasonable responses

    • Devis and Sons v Atkins (1977)

      • Judge on what the employer knew at the time, rather than what came about in the future

    • BHS v Burchell (1980)

      • The role of investigation

      • If employer:

        • Had honest belief

        • Had reasonable grounds for holding belief

        • Reasonable grounds based on a reasonable investigation

      • Will be fair.

  • Was the decision to dismiss determined with equity and the substantial merits of the case

• ACAS Code of Practice, Disciplinary Procedures

  • Employers should have regard to requirements of natural justice

    • If something is alleged, you should be told about allegation and evidence. Allowed to respond before decision is made.

• Other factors:

  • Seize of employer

  • Length of service

  • Disciplinary record

  • Consistency of treatment

  • Nature of offence

• Polkey reduction

  • Reduction in compensation awarded where:

    • Fair reason; but

    • Overall unreasonable response

Unfair Dismissal Remedies

• Compensation

  • Basic award

    • Age factor x length of service x one week pay

    • Age factor

      • 1 weeks pay for each year of employment between 22-41

      • 1.5 weeks pay for each year of employment between 41 and retirement

      • 0.5 weeks pay for each year of employment below 22

    • Length of service capped at 20 years

    • Week’s pay capped (currently 464)

    • No duty to mitigate loss

    • Tribunal can reduce if:

      • Conduct = contributory fault (up to 100%)

      • Just and equitable

      • Unreasonable refusal of offer of reinstatement

      • Statutory redundancy payment made – set-off

  • Compensatory award

    • Limit - 76,574

      • Does not apply in H&S or Public interest disclosure

    • Norton Tool Co Ltd v Tewson (1972)

    • Only financial loss, not non-pecuniary

    • Includes:

      • Loss of earnings to date of hearing

      • Future loss of earnings

      • Loss of statutory rights (300-400)

        • I.e. will now need to work 2 years to qualify for unfair dismissal

      • Loss of pension rights

        • Impact that loss of pension contributions will have on the value of pension on retirement

    • Reductions:

      • Just and equitable

      • Employee contributes to dismissal

      • Gratuitous payment

      • Failure to mitigate

      • Polkey

        • Unfairness made no difference, i.e. procedural unfairness

      • Failure to follow ACAS code

        • Up to 25% increase/decrease

• Reinstatement

  • Employer offers employee the same job back

  • First option to consider if employee wishes to return

  • Consider:

    • Practicable

    • Just

    • What effect on employer

  • If replacement already found, will be...