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Business and Employment Law

Business and Employment Law. Lecture 8 WB 26 th February 2018 Unfair Dismissal - Reasonableness. Claiming Unfair Dismissal. A claim for Unfair Dismissal can be broken down into 3 stages – the parties to those stages are:- Stage 1 Employee Stage 2 Employer Stage 3 Tribunal.

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Business and Employment Law

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  1. Business and Employment Law Lecture 8 WB 26th February 2018 Unfair Dismissal - Reasonableness

  2. Claiming Unfair Dismissal • A claim for Unfair Dismissal can be broken down into 3 stages – the parties to those stages are:- • Stage 1 Employee • Stage 2 Employer • Stage 3 Tribunal

  3. UNFAIR DISMISSAL Stage 1: The right: S.94(1) ERA 1996 An employee has the right not to be unfairly dismissed by his employer Eligibility: i)Must be an employee (Working in the UK) Two (from 6 April 2012) ii)Must have one or more year’s continuous employment (subject to exceptions) iii) Must prove dismissal

  4. Stage 1 Protection only available to employees • Statutory Workers do not qualify for unfair dismissal • Those on short fixed term contracts do not qualify • If an employee, protected despite: • Periods of sickness • Holiday • Maternity/Paternity Leave

  5. Stage 1 Employee must demonstrate he has been dismissed • S95(1) ERA 1996 – 3 types of dismissal • (a)..terminated by the employer with or without notice • (b)…fixed term contract expires without being renewed • (c)… Employee terminates the contract in circumstances where he is entitled to do….by reason of the employer’s conduct.

  6. Stage 2 – the Employer • Must demonstrate the reason for dismissal • That the reason falls within one of the prima facie grounds of s98 • Capability/qualification • Conduct • Contravention of an enactment (illegality) • Redundancy • Some other Substantial Reasons (usually relatd to business efficiency)

  7. The grounds in s.98(2) ERA a) capability or qualifications b) conduct c) redundancy #$*@!#

  8. The grounds in s.98(2) ERA d) contravention of an enactment + SOSR (s.98(1)(b))

  9. Stage 3 The role of the tribunal… • Is to establish that they employer had acted reasonably but in connection with the issue itself and the way in which the employer dealt with the situation – the tribunal must satisfy itself as to:- • It does this by applying of the Range of Reasonable Responses Test

  10. Stage 3 The Role of The Tribunal • The tribunal must not substitute its own findings • If a number of employers were in the room – might one dismiss for this reason? If the answer is yes, then this will be a fair dismissal.

  11. Stage 3 the Employment Tribunal • It is then for the tribunal to consider whether the employer acted reasonably in treating that reason as a sufficient reason to dismiss (s.98(4)). The tribunal will do this by employing the Range of Reasonable Responses test. • Iceland Frozen Foods Ltd v Jones [1983] ICR 17 • Were these actions the actions of a reasonable employer? The Tribunal will consider:- • Substantive reasonableness • Procedural reasonableness

  12. Stage 3 - 2 types of (sometimes overlapping) reasonableness - Reasonableness: Substantive I.e. is: * reasonable belief that x lacks competence to fly plane sufficient to dismiss under s.98(2)(a) (capability)? * drinking in the workplace sufficient under s.98(2)(b) (conduct)? * Upsetting colleagues through boasting of sexual exploits sufficient under s.98(1)(b) (SOSR)?, etc. Procedural How the dismissal was carried out...

  13. How are the employer’s actions judged? • Different matters will be considered reasonable depending on the head • S98 (2) (a) • Qualification – is the qualification relevant to the post? Has a reasonable opportunity been given to obtain the qualification? • Capability – has the employer given full support to the employee in order to achieve the desired level of performance – Kent Meters v Davis

  14. How are the employer’s actions judged? • s.98(2)(b) Conduct - MUST BE INVESTIGATION • BHS v Burchell [1980] ICR 303, 3-step test: • Employer must: i) believe the employee committed the act ii) have reasonable grounds for that belief iii) following reasonable investigation If so, it doesn’t matter if employee later turns out to be innocent! • But see Newbound v Thames Water Utilities Ltd (2015)

  15. How will the employer’s actions be judged? • S98(2)(d)Contravention of an enactment (illegality) • An employer can be fined very heavily if he employs someone who does not have a right to work in this country. • Kelly v University of Southampton

  16. How will the employer’s actions be judged? • s.98(2)(c) Redundancy - must be consultation • S162 TULR(C)A 1992 sets out the selection criteria for redundancy in line with the requirements of s98 ERA – the selection criteria must not be discriminatory

  17. How will the employer’s actions be judged? • S98(1)(b) Some other substantial reason. • Usually in relation to business efficiency • Treganowan v Knee 1975 • Baker v Securicor Omega Express 2000 • The employer must demonstrate that he had done as much as possible and has acted reasonably to avoid dismissal - but if he has no alternative, he can dismiss

  18. Disciplinary and Dismissal Procedures • The ACAS Code (re conduct/capability/performance + SOSR) pg59 Lecture Notes: • Investigate • Inform in Writing • Meeting (with right to be accompanied) • Appeal • Code of Practice on Disciplinary and Grievance Procedures 2015 – available online.

  19. ACAS Code Cont. • Capability: • Stage 1 – Investigate employee performance. • Stage 2 – Issue a performance warning to employee. • Stage 3 – Give fair opportunity to improve. • ‘the worker should wherever practicable be assisted through training or coaching and given time to reach the required standard’ • Employee should also be given the same right to be accompanied to meetings, receive written notification and be told of right to appeal.

  20. Grievance Procedures • Implied Term that the employer will have a grievance procedure • No set format • System must be robust • Must provide opportunity for employee to raise issues in a confidential environment • Grievance must be investigated in a timely manner • Employee must be satisfied that the issue has been dealt with • Must be an opportunity to take the issue to a higher authority

  21. Disciplinary/Grievance and Dismissal Procedures • Failure to comply:- • Formerly, dismissal AUTOMATICALLY unfair if employer at fault – s.98A(1) ERA + Compensatory Award increased (or reduced) by 10 – 50 % • Now, s.98(4) dismissal may be unfair and any award may be increased/reduced by up to 25% N.B. uplift/reduction also applies to discrimination claims (involving dismissal)

  22. Summary • 5 reasons for which a dismissal may be fair • Capability/qualification • Conduct • Illegality • Redundancy (see later lecture) • SOSR • Employer must act reasonably in relation to both the substantive reason for dismissal and the procedure he adopts • The tribunal applies the RRR Test

  23. Summary • The employer must have both discipline and grievance procedures • The employee must be aware of the procedure • The penalties for any action must be clearly set out in the procedure • All employees must have access to the procedure • The procedure must be maintained • Failure do follow procedures can have implications at Tribunal

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