EMPLOYMENT LAW - UNFAIR DISMISSAL
Employment Law Unfair Dismissal Questions
We list here the most commonly asked questions in relation to unfair dismissal. If you have any other questions please contact us using the information at the bottom of this page.
What is dismissal?
Most termination of contracts of employment amount to a "dismissal". The most common exception (when there will be no "dismissal" ) is where the employee has resigned of their own free will and not as a result of the employer's conduct. If, however, an employee has reason to resign because of certain conduct of their employer there will be a "constructive dismissal" and a claim for unfair dismissal can be made.
When is a dismissal fair or unfair?
The law gives an employee the right to be treated in a fair and reasonable manner. For an employer to dismiss an employee fairly, he or she must both:
- have a valid reason for dismissing the employee, and
- act reasonably in treating that reason as a sufficient reason for dismissing the employee, unless the dismissal is automatically unfair then this second condition does not apply.
What may be a valid reason for dismissal?
The potentially fair (valid) reasons can be:
- Incompetence
- Incapability due to illness or injury
- Lack of qualifications
- Misconduct
- Redundancy
- Illegality of contract
- Some other substantial reason of the kind as to justify the dismissal of a person holding the position that you held
- The employer must also act reasonably in treating the reason as a sufficient reason for dismissing the employee
When is dismissal automatically unfair?
The dismissal of an employee will be held to be unfair if it is a:
- Union related dismissal
- Health & Safety related dismissal
- Dismissal for asserting statutory rights
- Maternity related dismissal
- "Pension trustee" related dismissal
- Employee representative related dismissal
- Dismissal for refusing to work Sundays and the employee is a shop or betting worker
- Unfair selection for redundancy
- Dismissal on a transfer of an undertaking
What is reasonable procedure and sufficient reason for dismissing an employee?
An employer must act reasonably in all the circumstances in treating the reason for dismissing the employee as a sufficient reason for the dismissal. Not only must the employer have a valid reason for the dismissal, but also he or she must have acted reasonably in all the circumstances in dismissing the employee for that particular reason. The question whether the employer acted reasonably not only involves consideration of the way in which the dismissal was carried out, but also whether he or she acted reasonably in relation to the situation leading up to the decision to dismiss the employee. For example, if the employee was dismissed for misconduct or lack of capability, it is necessary to consider whether he or she was warned and given a chance to improve or, if redundancy was the reason for dismissal, whether the employee was considered for alternative work within the same organisation.
What is the ACAS Code of Practice on disciplinary and grievance procedures?
ACAS has produced a Code of Practice. This gives employers practical advice on how to deal with disciplinary matters in a way which is fair and can be seen to be fair by their employees. Generally, tribunals take into account any provision of the Code which appears to them to be relevant to any question before them. They do not expect all employers to follow the Code to the letter regardless of their particular circumstances, but to decide to what extent it is practicable and necessary for an employer to do so given the size and administrative resources of his or her business.
Legislation specifically requires tribunals to take these factors into account when determining whether the employer acted reasonably. For instance, a small firm where there is only one level of management may not be able to provide a right of appeal to another manager. Nor would an employer employing only a small number of people necessarily be expected to have a formal written disciplinary procedure, and keep formal records of every offence and disciplinary action taken - although it might be prudent to do so, since if no records are kept, the tribunal will have to decide between the employer and the employee if their evidence conflicts.
What are the essential elements of a good procedure?
Reasonable procedure is, therefore, no more than what an employer should always do in the interests of justice and good employee relations. Its essential elements are as follows:
- Give a full briefing as to what work and standard of work and conduct is required from the employee
- When the employee is first employed he or she should be given clear instructions as to the scope of the duties. So far as matters of conduct are concerned, there should be clear rules which are reasonable having regard to the nature of the undertaking. The employee should know what actions are considered so serious that a first offence means summary dismissal, that is dismissal without notice or pay in lieu of notice.
- Give the employee a chance to remedy any unsatisfactory conduct
- Except where the conduct is so serious as to justify summary dismissal, for example where an employee has been caught 'red-handed' in an act of gross misconduct, an employee should always be told in what way he or she is at fault and warned that an improvement must be made. It is not essential to put warnings in writing, but it is best to do so. A written note will ensure that the employer's intentions are absolutely clear and may also be useful in evidence should the case come to a tribunal.
- The employee should be given a reasonable time to improve after being warned.
- Before any disciplinary decision is made the employee should always be given an opportunity to explain their version of events, even if the allegation is one of gross misconduct. Also, an employer should not jump to hasty conclusions - an employee who has been warned for bad-timekeeping may have a valid reason for arriving late.
- Ensure all workers are given the opportunity to be accompanied by a fellow worker or a trade union official of their choice at disciplinary and grievance hearings. Dismissing the employee A clear reason for the dismissal should always be given and explained to the employee.
- Where possible, the employee should be given the opportunity to appeal to another manager from the one who made the decision. If this is impossible due to the size of the business, the employee should still have the opportunity to ask the person who made the decision to reconsider that decision; in particular its fairness.
Written statement of reasons for dismissal
If the employee: -
- has one continuous period of employment and makes a request; or
- who is dismissed at any time and for any reason while she is pregnant or during a statutory maternity leave period regardless of length of service,
they are entitled to a written statement of the reasons for their dismissal and this must be provided within 14 days of the request or dismissal. Failure to provide such written reasons within this time limit can lead to the employment tribunal making a separate award for this failure.
What can an employee do if they believe they have been unfairly dismissed?
An employee who believes that he or she is entitled to make a complaint to an employment tribunal should first seek to resolve the dispute by mutual agreement with the employer - perhaps through the business's own grievance or appeals procedure, where one exists. The Employment Tribunal may reduce any award of compensation if no such steps have been taken.
The time limit for presenting a claim for unfair dismissal will not normally be extended to allow for the fact that attempts have been made to settle the dispute in advance.
It may also be possible for an employee to bring a claim for breach of contract if no or insufficient notice has been given to end the contract.
What is the time-limit for presenting an unfair dismissal claim?
An application to an employment tribunal may be made as soon as the employer has given notice of dismissal and should be received within the period of three months beginning with the employee's effective date of termination. If the application is received any later than that date the tribunal will consider the complaint only if they believe it was not reasonably practicable for the employee to have made the complaint within the three-month period and that it has been made within such further period as they consider reasonable.
How is a claim for unfair dismissal started?
A claim for unfair dismissal is started by sending a completed application form ET 1 to the appropriate employment tribunal within the relevant time-limit.
Is there any fee payable on application?
No.
What orders can an employment tribunal make in a claim for unfair dismissal?
There are three possible remedies for unfair dismissal, two of which involve re-employment of the applicant by the employer:
- reinstatement (the employee is to be treated in all respects as though the dismissal had not occurred)
- re-engagement (the employee is to be re-employed but not necessarily in the same job or on the same terms and conditions of employment)
- compensation
Orders for reinstatement or re-engagement normally include an award of compensation for the loss of earnings.
When a tribunal finds that an employee has been unfairly dismissed it will explain what orders it can make for the employee to be reinstated or re-engaged and will ask the employee whether he or she wants such an order. In deciding whether or not to make an order for reinstatement or re-engagement, the tribunal will take into account:
- the employee's wishes
- the practicability of the employee returning to work for the employer
- in cases where the employee was partly to blame for the dismissal, whether or not it would be just to make such an order
Where a tribunal orders re-engagement it will be on terms which are, wherever possible, as favourable as if the employee had been reinstated, unless the employee was partly to blame for the dismissal.
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