Unfair Dismissal

Unfair dismissal is the termination of a contract of employment for unfair or inadequate reasons, with or without notice.

b) What is unfair dismissal?

There are several ways your dismissal could be unfair

your employer does not have a fair reason for dismissing you (e.g. if there was nothing wrong with your job performance)

your employer did not follow the correct process when dismissing you (e.g. if they have not followed their company dismissal processes)

you were dismissed for an automatically unfair reason (e.g. because you wanted to take maternity leave (Directgov, Dept. of Employment, 2011)

It is only for a reason of statute, meaning it has to be recognised by law that a person is unfairly dismissed. It is technically possible for there to be unfair dismissal, when ordinarily there has been neither dismissal nor unfairness. (Anon, netlawman, 2011)

II DEVELOPMENT

a) The reason for dismissal

Where an employee is unfairly dismissed, it is the employer s duty to determine why the person is unfairly dismissed. Or, if there were more than one reason for dismissal it has to be specified. If the employer fails to prove the reason, or one of the four reasons set out in ERA 1996, the dismissal is deemed to be unfair. (Bowes, 2002)

Even if the employee specifically agrees that the term will not be renewed he can still claim unfair dismissal, the employer has to establish the reason for dismissal. If the employer cannot prove any reason at all for dismissal, the dismissal is automatically unfair. (Adams v Derby city council (1986))

In normal cases , before a person claims unfair dismissal, the tribunal has to establish that the relationship exists as employer and employee between them, he or she has to have had work under a contract of service written or oral, express or implied, must comply with age requirement by the actual date of termination ,at least a minimum of one year continuous employment with the same employer. If the employee however, was at his retiring age, 65 for both men and women, the dismissal does not apply. (Keenan, 1995)

For a person to be able to bring a claim of unfair dismissal it is essential that he or she is an employee within the meaning of Employment Rights Act 1996.

b) Time limits

Time-limits for presenting complaints are strictly enforced. But if for unforeseen reason resulting from a postal delay or on the closure of a tribunal office for one reason or another from other party, a short extension may be granted.

There are three time-limits which Tribunals do not have power to extend:

• The six month period for claims under the Equal Pay Act 1970;
• The six week period for an appeal against non-discrimination notice under the Sex Discrimination Act 1975 or the Race Relations Act 1976;
• The seven day period for an application for interim relief when an employee alleges unfair dismissal on grounds related to trade union membership or activities contrary to Trade Union and Labour Relations Consolidation Act

There is no onus of proof on the employer or employee for this purpose – the employment tribunal must simply take into account all the circumstances, including the size and administrative resources of the employer’s undertaking.

When an employment tribunal is coming into a conclusion whether the dismissal is fair or not, it likely to pay attention to the procedure that the employer took to dismiss the employee. If he did issue the employee with the policy stipulating the situation or if the employee was aware of these policies.it is in the employer interest to set those rules clearly in the relevant policy to avoid problems later when dismissing an employee. (Anon, netlawman.2011)

A Tribunal will take into account whether or not the employer followed proper procedures. If the employer did not follow the procedure, a potential fair dismissal can turn to an unfair dismissal.

The basic award part is not related to loss suffered. It is simply a multiple of a week’s pay as defined according to a formula which takes into account years of service and age of the claimant. The practical application of the formula is:

• 1/2 a week’s pay for each year worked between 18th and 22nd birthday;
• 1 week’s pay for each year worked between 22nd and 41st birthday;
• 1 1/2 week’s pay for each year worked after 41st birthday.

The most recent 20 years only are taken into account for the purposes of this calculation if a long service employee is being dismissed.

C) Cases of unfair dismissal

a) Boychuk v J. Symons a (Holdings) Ltd, 1977(a dismissal for conduct)

b) Alidair v Taylor (1978) I.R.L.R. 82. (Lack of capability or qualifications)

c) Coleman v Sky rail Oceanic Ltd (1981) (a dismissal because of sex discrimination)

C) Wadley v Eager Electricity (1986) I.R.L.R 93

Many awards, including basic award, are taking inflation into account

Tribunals can reduce the basic award, even to nil, if the conduct of the employee were bad, the merits can be reduced. However, once he has been dismissed, an employee is not obliged to mitigate his loss for basic award, which is different from the compensatory award position.

D) What do you get in court for unfair dismissal ?

In addition to compensatory award a successful claimant in an unfair dismissal case is also entitled to a basic award calculated by reference to a fixed formula.

The maximum possible award in “normal” unfair dismissal cases in recent years is/has been:

• £18,600 (£12,000 plus 30 X £220 for maximum basic award) before 25th October 1999;
• £56,600 (£50,000 plus 30 X £220) from 25th October 1999 to 31st January 2000;
• £56,900 (£50,000 plus 30 X £230) from 1st February 2000 to 31st January 2001;
• £58,900 (£51,700 plus 30 X £240) from 1st February 2001 to 31st January 2002;
• £60,100 (£52,600 plus 30 X £250) from 1st February 2002 to 31st January 2003;
• £61,300 (£53,500 plus 30 X £260) from 1st February 2003 to 31st January 2004;
• £63,100 (£55,000 plus 30 X £270) from 1st February 2004 to 31st January 2005;
• $65,200 from 1st February 2005 ($56,800 plus 30 x $280 for maximum basic award.

Mitigation of loss

When assessing a compensatory award in an unfair dismissal case, the courts and tribunals apply the normal common law rules requiring a person who is seeking damages to mitigate his loss but an employee has no right to mitigate loss if it is already provided by the contract itself, the amount that will be entitled to him in that specific situation.

E) Remedies

All remedies are under statute, if a Tribunal finds an employee has been unfairly dismissed there are three category of remedies open to him. The court can make an order for:

• Reinstatement;

• Re-engagement, or;

• Compensation.

Reinstatement means giving the same job back to the employee with the same employer;

Re-engagement means giving the employee a new job with the same employer;

There is no power for a tribunal to order both reinstatement (and reengagement) and compensation.

There are special rules which ensure that the statutory limit on compensatory award can be exceeded in cases where an employer refuses to comply with a reinstatement or reengagement order.

III CONCLUSION

Redress is compensating someone for some damages that they experienced. The courts decide how much the person is entitled to for their injury or loss (anon, 2011, business dictionary).

The procedure for a person to obtain redress for unfair dismissal involves the following:

Deciding entitlement to complain,

Application to the employment tribunal,

The employer’s response ,

The advisory conciliation and arbitration service compromise agreement,

preliminary hearing,

Pre-hearing review and full tribunal hearing. (Willey, 2003, p337)

Thus as presented above it is suggested that there can be a redress, however that redress may be adequate or not, but the employee may receive compensatory award or basic award, or can also make additional award if the court orders his employer to re-employ him but they fail unreasonably to do so. The court can ask them to pay up to £25,000; can be awarded for wrongful dismissal or unfair dismissal. (Anon, 2011, net lawman.)

In light of all the reasons above , it may be argued that unfair dismissal does provide part of the redress, adequate or not based on the particularity of the case as a central remedy of reinstatement, that is , putting an unfair dismissed employee back to his old job, is granted only in 1 per cent of cases. In other cases, the redress can be in the form of monetary incentive.