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UNFAIR DISMISSAL
Meaning of Dismissal
Dismissal is defined as the termination of employment by:
- the employer, with or without notice; or
- the employee's resignation,
with or without notice, where the employee has resigned because the employer
by his or her conduct, in breach of the
contract of employment,
has shown an intention not to be bound by the contract (this is commonly
known as 'constructive dismissal' (see below)) or
- the expiry of a limited-term contract without its renewal. A limited-term
contract is a contract for a fixed term or the performance of a specific
task, or one
which ends when a specified event does or does not occur.
If, after being
given notice of dismissal by the employer, an employee gives due notice,
in writing or otherwise, to terminate the contract
of employment
at an earlier date than required by the employer, the employee will still
be regarded as dismissed by the employer but the effective date of termination
will be the date that the employee's own notice, rather than the employer's
notice,
takes effect.
Constructive Dismissal – Breach of Contract
by the Employer
A tribunal may rule that an employee who resigns because
of conduct by his or her employer has been 'constructively dismissed'.
For
a tribunal to rule in this way the employer's action has to be such that it
can be regarded as a significant breach of the employment contract
indicating
that he or she intends no longer to be bound by one or more terms of
the contract: an example of this might be where the employer arbitrarily
demotes
an employee
to a lower rank or poorer paid position. The contract is what has been
agreed between the parties, whether orally or in writing, or a combination
of both,
together with what must necessarily be implied to make the contract workable.
When is a Dismissal Fair or Unfair?
The law on unfair dismissal
does no more than give employees a legal right to be treated in the way in
which a fair and reasonable employer
would treat
them
anyway. 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.
The second of these conditions does not apply in cases where
the dismissal is unquestionably unfair (see below).
Has the Employer Established A Fair Reason For Dismissal?
Legislation
lists five specific types of reason which can justify dismissal. They are
as follows:
Conduct
This is by far the most common reason for dismissal
and the one which leads to the largest number of complaints of
unfair dismissal.
For
this reason
this guide
is chiefly concerned with dismissal for disciplinary
reasons. On the specific question of criminal offences see the paragraph
on Dismissal
in Connection
with Criminal Offences.
Capability
The employee is unable satisfactorily to do or
does not have the qualifications for the job. The question
of
the employee
who becomes unable to do
his or her job because of illness is discussed
further below (see Dismissal in Connection
with Illness).
Redundancy
In general, an employee can have no grounds for
claiming unfair dismissal if the dismissal
was because of
redundancy, that
is because the employer
had no
work or insufficient work for the employee
to do. There are, however, some circumstances in which
it is unfair
to make
an employee redundant
(see Dismissal
on Grounds
of Redundancy).
A Statutory Requirement
This may prevent the employment continuing,
for example where a chauffeur has lost
his driving
licence and
there is no
other suitable job available.
Some other
Substantial Reason
Experience has shown that the above reasons are likely
to cover almost every case where dismissal is necessary. Situations may arise,
however, where
an employer has a good reason for dismissing an employee which is not one
of
those listed above. An example would be the dismissal of an employee
who was taken on as a temporary replacement for a worker who was returning
after being suspended for medical reasons (provided, of course, that it
had been
clearly explained to the employee concerned that the job was only temporary).
For such a reason as this, described in legislation as 'some other substantial
reason', the dismissal may also be fair.
Automatic Unfair Reasons for
Dismissal
The dismissal of an employee will be held to be unfair and
give rise to a claim of automatic Unfair Dismissal if it is for one of the
following
reasons:
- because the employee was, or proposed to become, a member
of an independent trade union; or had taken part or proposed to take part
in the activities of
an independent trade union at an appropriate time; or was not a member
of a trade union, or had refused or proposed to refuse to become or remain
a member
of a trade union. Selection for redundancy on these grounds will also be
held
to be unfair. An employee will also be held to be unfairly dismissed if
he or she is dismissed for refusing to make a payment (e.g. to a union or
charity)
in lieu of union membership, or for objecting to his or her employer deducting
a sum from his or her wages or salary to make such a payment;
- because the
employee was dismissed or selected for redundancy on maternity related
grounds;
- because the employee was dismissed or selected for redundancy for
taking or seeking to take paternity leave;
- because the employee was dismissed
or selected for redundancy for taking or seeking to take adoption leave;
- because the employee was dismissed or selected for redundancy for requesting
flexible working arrangement;
- because the employee was dismissed or selected
for redundancy for having sought, in good faith, to assert a statutory
employment protection right;
- because the employee was dismissed or selected
for redundancy for taking or proposing to take certain specified types of
action on health and
safety grounds;
- because the employee was dismissed on the transfer of an undertaking
or part of an undertaking, and the transfer itself, or a reason connected
with it,
is the main reason for the dismissal, unless it can be established that
the dismissal was for an economic, technical or organisational reason entailing
changes in the work force;
- because, subject to certain conditions, the
employee was a shop worker or a betting worker and was dismissed or selected
for redundancy for refusing
to work on Sundays; or he or she was dismissed or selected for redundancy
for giving, or proposing to give, an "opting out" notice to
his or her employer;
- because the employee was dismissed or selected for
redundancy for performing, or proposing to perform, any duties relevant
to his or her role as an
employee representative or as a candidate to be a representative of this kind
or
as a participant in the election of such a representative;
- because the employee
was dismissed or selected for redundancy for performing, or proposing to
perform, any duties relevant to his or her role
as an employee occupational pension scheme trustee;
- because the employee was
dismissed or selected for redundancy for reasons relating to the national
minimum wage;
- because the employee was dismissed or selected for redundancy
for reasons relating to the Working Time Regulations 1998;
- because the employee
was dismissed or selected for redundancy for making a protected disclosure
within the meaning of the Public Interest Disclosure
Act 1998;
- because the employee was dismissed or selected for redundancy for
reasons relating to the Tax Credits Act 2002;
- because the employee was dismissed
or selected for redundancy for taking, or seeking to take, parental leave;
- because
the employee was dismissed or selected for redundancy for taking, or seeking
to take, time off for dependants;
- because the employee was dismissed or selected
for redundancy for taking lawfully organised official industrial action lasting
eight weeks or less
(or more than eight weeks, in certain circumstances) where the action started
on or after 24 April 2000;
- because the employee was dismissed or selected
for redundancy for exercising or seeking to exercise rights relating to trade
union recognition procedures;
- because the employee was dismissed or selected
for redundancy for exercising or seeking to exercise the right to be accompanied
at a disciplinary or grievance
hearing, or to accompany a fellow worker;
- because the employee was dismissed
or selected for redundancy for performing or proposing to perform any duties
relating to an employee's role as a workforce
representative or as a candidate to be such a representative for the purposes
of the Transnational Information and Consultation of Employees Regulations
1999, or for taking certain actions in connection with these regulations,
or for proposing to take or failing to take such actions;
- because the employee
was dismissed or selected for redundancy on grounds related to the Part-time
Workers (Prevention of Less Favourable Treatment)
Regulations 2000;
- because the employee was dismissed or selected for redundancy
on grounds relating to the Fixed-term Employees (Prevention of Less Favourable
Treatment)
Regulations 2002;
- because the employee was dismissed without statutory dismissal
and disciplinary procedures having been followed;
- because the employee was
dismissed or selected for redundancy for reasons relating to the European
Public Limited-Liability Company Regulations 2004;
- because the employee was
dismissed or selected for redundancy for reasons relating to the Information
and Consultation of Employees Regulations 2004
for undertakings with 150 employees (from 6 April 2007 for undertakings with
100 employees and from 6 April 2008 for undertakings with 50 employees);
- because the employee was dismissed for reasons relating to jury service.
Has the Employer Followed A Fair Procedure Prior to Dismissal?
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.
In deciding whether the employer acted reasonably in dismissing
the employee the tribunal will also take account, amongst other factors,
of whether
he or she followed appropriate disciplinary procedures. As of 1 October
2004,
statutory dismissal and disciplinary procedures came into force.
If those procedures apply and are not treated as having been complied
with, a
dismissal will be unfair if an employee is dismissed without the
statutory procedure
having been followed.
From the same date, however, if an employer
fails to follow a disciplinary procedure which goes beyond the statutory
procedure, that failure
will not by itself make the dismissal an unfair one - provided
that properly
following
the procedure would have made no difference to the decision to
dismiss, and that the dismissal was fair in all other respects.
Written Statement
of Reasons for Dismissal
The Employment Rights Act 1996 provides that employees
who have been dismissed may request from their employer a written statement
of
the reasons for
their dismissal, which their employer must provide within 14
days. Employees who
are dissatisfied because they have not received a statement
or believe the statement to be inaccurate may refer the matter to
an employment
tribunal. All employees with one year's continuous service
with their employer qualify
for this right. An employee who is dismissed at any time and
for any reason while she is pregnant or during a statutory maternity
leave
period will
be
entitled to receive a written statement of the reason for her
dismissal, without having to request it and regardless of her length of
service.
There is of course nothing to prevent an employer from providing
written statements voluntarily for employees who do not qualify
for this right
under employment legislation.
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