UNFAIR DISMISSAL
• Under s94 Employment Right Act 1996, [Employees name] has a right not be be unfairly dismissed
• For an unfair dismissal claim, [Employees name] must be a qualifying employee i.e have one years continuous employment – which he [is/isn’t]
• Here the dismissal is:….
Actual dismissal (dismissal by the employer with or without notice)
Constructive (the employer has committed a repudiatory breach of an express or implied term of the contract)
• Was the 3 step procedure for dismissal complied with?Yes?
• Was there a potentially fair reason for the dismissal?Yes?
The most likely one in this case being:
[pick one]
(a) The capability or qualifications of the employee for doing work of the kind he was employed to do (this could include incompetence, or inability to do the job by reason of illness or injury);
(did the e’or warn the e’ee and give him a chance to improve?
-Did he provide adequate training?
-Could he have been moved to a job within the e’ee’s competence?
-Illness, did the e’or consult e’ee about duration and nature of illness?
(b) the conduct of the employee (this must generally relate to conduct within the employment – outside behaviour will only be relevant if it has a direct bearing on the employee’s fitness to do the job);
-thorough investigation
-employee should hava a chance to state his case
-only if misconduct is gross or persistent
-ACAS Guidelines consulted?
(c) the employee was redundant (in this case the employee will be entitled to a redundancy payment (see below));
(d) the employee could not continue to work in the position held without contravening some statutory enactment (eg where a lorry driver loses his driving licence);
(e) some other substantial reason justifying the dismissal of an employee holding the position which the employee held (it is not possible to give a comprehensive list of such reasons, but this category has been held to include dismissal where the employee refuses to accept a reorganization affecting his working hours and a dismissal arising out of a personality clash between employees); and
(f) retirement – if it takes place at or after 65 (or a lower age which is objectively justified by the employer) and it meets procedural requirements, such as complying with a duty to inform the employee of the intended retirement date and of the employee’s right to request to work beyond that date.
• S98(4) ERA 1996, the tribunal must decide..did the employer act reasonably?
Was dismissal a reasonable response?
Warn, redeploy, chance to improve, train
Misconduct discovered after dismissal, e’or cant rely on it but it may reduce compensation available
Remedies:
Basic award: -
Above 41– multiply by 1½
22 -40 – multiply by 1
below 22 – multiply by ½
Falls into what category?
No. of years he’s ½ , 1 or 1 ½
been in that category x x 310 (statutory minimum)
Compensatory award
Calculated in light of
immediate loss of net wages from the date of the dismissal to the date of the hearing, assuming the employee has not at that date got another job;
future loss of net wages – based on an estimate as to how long it might take the employee to get another job (assuming he has not yet done so);
loss of fringe benefits; and
loss of statutory protection. In any new job, the employee will have to start building up as against a future employer his statutory rights to a redundancy payment and unfair dismissal protection and a statutory minimum notice.
If the grievance, disciplinary or dismissal procedures haven’t completed and its e’ors fault?
• e’ee can get uplift of 10 – 50% on compensation
• But if non compliance is due to e’ee, - 10-50% decrease in compensation
Max is 60,600
WRONGFUL DISMISSAL
Is a common law claim based ib the employer terminatig the contract iun a way which is in breach of the contract of employment
What type of contract is it?
Indefinite – terminated with no or inadequate notice
Fixed term without break clause – termination before the contract expires
Has notice been given properly?
Notice period, if tye notice period is shorter than the one in ERA 1996 s86 the longer one prevails unless agreed otherwise
Stat minimum
1 months continuous employment - 1 weeks notice
2 years continuous employment - 2 weeks notice
up to 12
Remedies
Damages for breach of contract (out party back to position they would be in had contract not been broken)
REDUNDANCY
• Must be qualified employee (2 years continuous employment)
• Refer to employment tribunal within a 6 month period from reduncancy
• Prove that he’s been dismissed actually or constructively
• It becomes presumed that the e’ee was dismissed for redundancy
Is the reason within one of these 3? i.e within s139 ERA 1996…
(a) complete closedown (the fact that the employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed by him);
(b) partial closedown (the fact that the employer has ceased or intends to cease to carry on that business in the place where the employee was so employed); and
(c) overmanning or a change in the type of work undertaken (the fact that the requirements of the business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place
where the employee was employed by the employer, have ceased or diminished, or are expected to cease or diminish).
Employee entitled to a redundancy payment but may lose it if he’s nreasonably rejected an offer for suitale alternative emplyoyment
