| ELIGIBILITY | WD claim cannot be made if the termination was carried out in accordance with termination conditions… however the employee may still have a claim in UD UD is a statutory claim set out in the Employment Rights Act 1996 Not all employees eligible; 4 tests: |
| EMPLOYEE Contract OF SERVICE and not contract FOR SERVICES Not always straightforward to distinguish… difficult to find a single test Three basic requirements: 1 means can’t delegate the work to someone else 2 means the employer must be under an obligation to offer the employee work and the employee must be under an offer to accept it -
3 means, for example, hours of work, place of work and duties to be performed DISMISSAL REQUISITE PERIOD OF EMPLOYMENT PRIOR TO DISMISSAL Month means a calendar month and year means 12 calendar months 20 April 2011 and worked continuously from that date, the first years’ employment would be complete on 19 April 2012; BEEN INCREASED TO 2 YEARS MUST NOT BE IN EXCLUDED CLASS |
| ACTIVITY 1 – THE DEFINITION OF DISMISSAL | |
| THE UNFAIR DISMISSAL CLAIM | At common law an employer, as long as he abides by the termination provision in the contract, can dismiss employees as he sees fit with no remedy arising for the employee… however in order to protect the employees from this dismissal at whim, the statutory claim of unfair dismissal has introduced the concept of ‘fairness’ 4 stages of an unfair dismissal claim: Is the employee eligible to claim? Employee has to prove eligibility Has the employee been dismissed? Employee has to prove dismissal Was the dismissal for a potentially fair reason? Employer to prove the reason for dismissal Did the employer act reasonably in dismissing the employee? Tribunal to decide This summarises the progress of an unfair dismissal claim; note however that exceptional cases, such as trade union and maternity cases, will vary this structure |
| THE FIVE PERMITTED REASONS | If employer is unable to show that the dismissal was for one of the five permitted reasons in s98(2), the dismissal will be unfair The reason for the dismissal must relate to: Employee’s capability or qualifications to do the work? Employer will argue that the employee isn’t capable of doing the job because he lacks capability or is too ill If the employer argues that the employee lacks qualifications, the employer must show that such a qualification is essential to do the job Conduct Covers such things as disobedience to orders, dishonesty, breach of the duty of fidelity, poor timekeeping etc. Misconduct outside employment will also come under this reason as long as it is connected to the employment; e.g. no implications if a cashier was found guilty of a motoring offence, but theft would apply Redundancy Illegality Other Catch all provision Employer must prove the reason for dismissal and that it is a substantial reason and not just trivial This has been used in connection with business reorganisations or where there has been a clash of personalities between two employees |
| ACTIVITY 2 – IDENTIFYING PERMITTED REASONS | |
| AUTOMATICALLY UNFAIR DISMISSALS | Special cases where the normal rules are varied In these cases the dismissal is automatically unfair So after the tribunal has judged that the real reason for dismissal falls within an unfair category, it will make a finding of unfair dismissal and does not need to consider the reasonableness The special cases are as follows Dismissals for trade union reasons and following industrial action Dismissals for asserting statutory rights Health and safety dismissals Dismissals on the transfer of a business Pregnancy or maternity related dismissals |
| THE FAIRNESS OF THE DISMISSAL | After the employee has stated the reason for the dismissal, and proved that it is one of the permitted reasons, the tribunal will decide whether or not the dismissal is fair Question of fact; the tribunal must take into account s98(4): Tells tribunal to take into account size and administrative resources of the employer; in other words larger companies will have to do more; they should have detailed policies in place and will be expected to comply with them; If employers are incapable of doing their job, larger employers will be expected to consider offering an alternative employment before dismissal Also must consider whether the reason was sufficiently serious reason for dismissing the employee; or whether another sanction would have been more appropriate The tribunal must consider equity and fairness; how have similar situations been dealt with in the past? Employees should be treated the same The tribunal take into account the substantial merits of the case; it may for example be appropriate to give a long-serving employee with a clean conduct record, a second chance and not dismiss him for a first offence All other circumstances should be considered including the procedural conduct of the employer before the dismissal; for example was the employee given info about the allegation against him, was he allowed to put his case forward, was he given a right to appeal When considering fairness there is essentially two questions to be asked by the tribunal: Should this employee have been dismissed for the reason relied on by the employer? and; Was the procedure adopted by the employer prior to the dismissal fair? If the answer to either is no, then the dismissal is unfair The question is whether the employer acted reasonably, and not whether the tribunal itself would have dismissed the employee There will not usually be only one reasonable response to the circumstances of the case; for example one reasonable employer may choose to dismiss whereas another, equally reasonably, may decide to give a final warning; the tribunal must not try to pin down the one reasonable response and must look for the band of reasonable responses -
Having established this band of reasonable responses, the tribunal must decide whether the employer’s actions indeed fell within it |
| PROCEDURE PRIOR TO DISMISSAL | Employer’s actions throughout the process must come within the band of reasonable responses; this will differ depending on for which permitted reason the employee has been dismissed The actions a reasonable employer may take in each permitted reason: Capability and qualifications Conduct Redundancy Illegality Some other substantial reason |
| REMEDIES | |
