Unfair Dismissal

What is a Dismissal?

  • Employment law deals with issue of unfair dismissal. An employee can be dismissed for many reasons including redundancy and constructive dismissals.Dismissal is defined as being, when a contract of employment, under which the individual is employed, is terminated by the employer with or without notice.
  • There is also termination on the expiry of the fixed-term contract and also where the employee terminates contract due to the employer’s conduct (constructive dismissal).

What is Constructive Dismissal?

  • In order to claim constructive dismissal there must be a refusal to perform a duty or obligation owed to the other party that leads to a breach of contract.
  • The fundamental breach must have been by the employer and the employee resigned because of that breach.

The employee cannot delay too long before resigning, if the employee delays this will reaffirm the contract and the employee will lose the right to claim constructive dismissal.

Automatically Unfair Reasons

Many reasons for dismissal fall within the category of ‘automatically unfair’.

Reasons include:

  • Employees protected by discrimination and “family friendly” legislation (laws)
  • Health and safety
  • Trade union membership
  • Assertion of a Statutory right (right granted under law)

Blacklisted union member

Was The Dismissal for a Fair Reason?

The Employment Rights 1996 gives a list of potentially fair reasons for a dismissal from employment:

  • 1) Capability or qualifications
  • 2) Conduct
  • 3) Redundancy
  • 4) Statutory Restriction

Any other substantial reason (can include economic necessity and breakdown of trust or confidence).

Was the Dismissal Fair?

If the dismissal was fair depends on:

  • Whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably in treating (the reasons) as a sufficient reason for dismissing the employee and
  • Shall be determined in accordance with equity and the substantial merit of the case

Wrongful Dismissal

Dismissal in breach of the employment contract.

Examples of this would be;

  • Loss of wages and/or contractual benefits
  • No notice or insufficient notice of termination

The remedy for this is;

Statutory notice- 1 week notice (one months to 2 years service, then 1 week’s notice for each year- maximum of 12weeks Employment Rights Act 1996, Section 86)

Procedural fairness (procedures used by decision makers)

If an employer fails to carry out a fair and proper procedure before dismissing an employee, the dismissal is likely to be unfair. An employment tribunal may consider;

  1. Alternatives to dismissal
  2. Loss of trust/confidence
  3. Consistency of decisions
  4. Whether warnings/guidelines required

Employees record can be considered

Remedies for unfair dismissal

  • Re-employment (re-instatement or re-engagement) and/or
  • Compensation

Compensation award for unfair dismissal

The Enterprise and Regulatory Reform Act 2013, Section 15 gives the Secretary of State power to vary the amount.

From 29th July 2013 there was a cap introduced:

Maximum amount of compensation that one could receive:

Lower of 52 weeks’ pay (actual gross) or £86,444;

The maximum weekly wage is capped at £525 per week for unfair dismissal.

Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.

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