Unfair Dismissal Factsheet


By Paul Thomas Scott

www.workrep.co.uk

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23/09/2009


An employer unfairly dismisses an employee where he "dismisses an employee without good reason or without following a fair procedure". The law of unfair dismissal is contained in a number of statutes, however the Employment Rights Act 1996 (ERA), carries most of the relevant sections.

Qualifying Conditions.

  • A claim must be brought within 3 months of effective date of termination of employment ERA s111(2).
  • Must be employed under a contract of employment (contract of service), sub-contractors and contracts for services (such as consultants) will not attract the same employment protection, ERA s94(1). Similarly no protection will be conferred where the contract of employment is an illegal contract
  • A dismissal has occurred; the ERA s95(1) defines a dismissal as the termination of a contract, with or without notice, the expiry of a fixed term contract without renewal or the termination of a contract with or without notice due to employers conduct.
  • The employee must have been in that employment for a minimum of 1 year. ERA s108(1) SI 1999/1436. The qualifying period is calculated from the beginning of the employment contract, however this could be prior to the actual date that duties are performed under the contract, General of the Salvation Army v Dewsby [1984] ICR 498. This is inclusive of the first day, so 365 days qualifies, Pacitti Jones v O'Brien [2005] CSIH 56. A dismissal on medical grounds in relation to Health and Safety requires employment for 1 month ERA s108. There are numerous occasions where qualification period is not required, s108(2) ERA for example dismissal for the assertion of a statutory right, on the grounds of jury service or union related activities. This list is merely illustrative not exhaustive, the full details are contained in s108 ERA.
  • The date of termination is determined on the circumstances. If notice was given prior to dismissal, the date of termination will be when the notice expires. Dismissal without notice amounts to immediate termination. In terms of a fixed term contract that isn't renewed, termination is the date of expiry of that contract

Fairness of the Dismissal

If the dismissal is established in line with above qualifying conditions, the onus is then on the employer to show:

  1. The reason, or the principal reason, for the dismissal; the Tribunal will investigate the real reason for the dismissal, rather than accept what the employer states categorically Abernethy v Mott, Hat & Anderson [1974] ICR 323. The employer can only rely on facts known to him at the time of dismissal to establish that reason, anything that comes to light subsequently would be inadmissible.
  2. An acceptable justification for the dismissal

Automatically Unfair Dismissals

A number of justifications are deemed unfair in law, and these include amongst others:-

  • Union Membership, Activity or Non-Membership; Trade Union and Labour Relations (Consolidated) Act 1992
  • Health and Safety related dismissals, ERA s100(1)
  • Dismissal for asserting a Statutory Right; these rights are contained in various statutes and relate to areas such as Minimum Wage and Working Time Regulations
  • Family-related issues; pregnancy/childbirth/maternity

Once an employer has established an acceptable reason, the Tribunal will then have to decide whether, given the circumstances, the dismissal on this reason was in fact fair or unfair, ERA s98(4).

The Tribunal approach to fairness is to consider whether the employer's decision to dismiss came within the range of reasonable responses to the employee's conduct, which a reasonable employer could adopt, Neale v Herefoed & Worcester County Council [1986] ICR 471.

When is a dismissal fair?

Redundancy

Is potentially fair provided the correct procedures are followed by the employer

Retirement

Misconduct

  • Must either be extremely serious, or have occurred on more than one occasion
  • A single incident will not usually justify dismissal unless it is sufficiently serious in nature
  • Prior warnings may be considered Auguste Noel Ltd v Curtis [1990] ICR 604
  • An employer should act fairly and reasonably to investigate the seriousness of the offence John Lewis Plc v Coyne [2001] IRCR 139

Procedure

An employer must follow the statutory defined disciplinary procedures provided in s98 A of the ERA. Step One requires reasons for considering a dismissal, conduct or characteristics. Step Two requires a meeting between employer and employee to discuss the potential action. Step three involves any appeal procedure open to the employee.

In addition, if an employer seeks to dismiss an employee on these grounds, the employee should ensure that their employer has co-operated fully with the disciplinary procedures as established by the ACAS Code of Conduct on Discipline and Grievances in the workplace. These include guidelines governing informing the employee of the problem, holding a meeting to discuss the issues and deciding on appropriate action.

The full ACAS code is available at http://www.acas.org.uk/index.aspx?articleid=2179. It is worthwhile, if your employer has dismissed you, to carefully ensure that the code has been followed. The Tribunal will take account of any failure to do so.

Lack of Capability

Capability is measured with reference to aptitude, skill and physical or mental attributes. In order to dismiss an employee on the grounds of capability, an employer must have:
  1. shown what was required of the employee
  2. made the employee aware of that requirement/s
  3. found that the employee failed to fulfil it.

Procedure

The procedure for lack of capability dismissals is very similar to the above. As a bare minimum your employer should have followed the statutory obligations for disciplinary procedures. Failure to do so may make your dismissal automatically unfair.

Since the statutory requirement is minimal, it is likely that your employer will have additional procedures in place for dealing with these matters. These will usually be explained in full either in your employment contract itself or a company handbook if you were provided one. It is important to ensure, where appropriate, that these procedures have been followed also. Given that capability is the decisive factor, it is likely that your employer would offer further training, or opportunity to improve prior to dismissal.

Lack of Qualifications

Dismissals on this ground are quite rare. Obviously it would be difficult for an employer to dismiss an employee whose qualifications were known at the time of employment. Misleading their employer about qualifications obtained can justify dismissal.

Summary; Can you claim unfair dismissal?

Below are the steps that must be satisfied or fulfilled in order to complain against your employer.
  • Have you met the qualifying conditions? If yes, then
  • Has your employer dismissed you on the basis of an automatically unfair reason? If yes then you have a right of action, if no;
  • Was the employers decision to dismiss you a fair one? (NB Even where this is the case the tribunal will investigate the true cause, if you believe that your employer dismissed you for another reason then you could still have an action)
  • If the reason was fair, has your employer followed all the correct procedures? Failure to do so could give rise to a claim for unfair dismissal.

Remedies

The Tribunal has a number of remedies available to award where a finding of unfair dismissal is made.
  • Reinstatement
  • Re-engagement
  • Awards of compensation

Reinstatement

If an employee is reinstated they should be treated as if the dismissal had never occurred. In awarding reinstatement the court will consider whether the claimant would seek reinstatement, its practicability and whether it would be just given the circumstances s114 ERA.

An order for reinstatement would include an award of any monies or benefit the employee would have received but for the dismissal, a restoration of all rights and privileges and a date for compliance with both the order and the above. S116(1) ERA.

Where there has been an irrevocable breakdown of the trust and confidence between an employer and employee, the scope for a reinstatement award will be limited Woodgroup Cleary Industrial Turbines Ltd v Grossan [1998] IRLR 680.

Re-engagement

If reinstatement is not suitable, the Tribunal must then go on to consider re-engagement s116(2) ERA.
Section 115(1) ERA defines re-engagement as "the complainant be engaged by the employer in employment comparable to that from which he was dismissed or other suitable employment".

An order for re-engagement is will contain reference to the identity of the employer and the nature of the employment that the employee is to re-engaged with. Failure of an employer to either reinstate or re-engage the employee will result in additional compensation (s117(3) ERA).

Compensation

Where the tribunal has found in favour of the employee, it will usually make an award of compensation. Under s118(1) ERA the award will be made up of a basic award and a compensatory award. There are statutory limits on what figures can be given.

Basic Award

The basic award will usually be the equivalent to an award of statutory redundancy pay, which is:
  • One weeks pay for each year worked between the age of 22 and 41
  • One and a half week's pay for each year after 41
  • Half a week's pay for each year under 22 The basic award can, given the circumstances, be reduced where it is 'just and equitable' to do so. This may occur if the employee somehow contributed to the dismissal for example.

Compensatory Award

This award is limited by statute. For dismissals post 1st February 2007 the maximum is £60 600
The Tribunal will assess the amount to be given based upon what is just and equitable given the circumstances s231(1) ERA. The tribunal will also consider any expenses occurred as a result of the dismissal s231(2) and any loss of benefit s231(3)

Interim Relief

In certain circumstances, an order for interim relief can be made. Such circumstances may include dismissals on health and safety or trade union grounds. A list of such circumstances is contained in s128 ERA. An application for interim relief must be made within 7 days of the dismissal.
  



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