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Unfair Dismissal . Employment rights Act 1996 Employment Act 2002 and supporting regulations which came into effect in late 2003. Introduction. The right not to be unfairly dismissed is intended to act as a constraint on employers who have the authority to hire and fire as they please

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Unfair dismissal l.jpg

Unfair Dismissal

Employment rights Act 1996

Employment Act 2002 and supporting regulations which came into effect in late 2003


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Introduction

  • The right not to be unfairly dismissed is intended to act as a constraint on employers who have the authority to hire and fire as they please

  • Unfair dismissal is recognised as such as early as 1977 by Philips J in Davis & Sons Ltd. v. Atkins 1977 – “the expression ‘unfair dismissal’ is in no sense a common-sense expression capable of being understood by the man in the street”


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Introduction

  • The present unfair dismissal law is contained in the ERA 1996 as amended

  • The contemporary approach is to encourage parties to avoid litigation or to use the new alternative ACAS Arbitration Procedure;

  • Under the EA 2002 and supporting Regulations new statutory dispute resolution procedures are introduced


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Introduction

  • The right not to be unfairly dismissed is perhaps the most fundamental

  • The role of the Employment tribunal

  • The emphasis in unfair dismissal complaints is very much on the particular applicants case

  • Evaluation of an employer’s conduct should be left exclusively to the Tribunal in its capacity as industrial jury


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Introduction

  • Under s.94(1), ERA 1996, every employee shall have the right not to be unfairly dismissed by his employer

  • An employee is entitled to have complaint of unfair dismissal heard before an employment tribunal even if the employer offers to pay the maximum compensation recoverable with no admission of unfair dismissal

  • The claim is not simply for a monetary award. It is a claim that the dismissal was unfair

  • The employee is entitled to a finding on that matter and to maintain his claim to the tribunal for that purpose


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Unfair Dismissal Qualifications

  • Full-time and part-time employees enjoy the same statutory rights

  • Under s. 108(1) ERA 1996 …, section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination


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Unfair Dismissal Qualifications

  • To fall within the provisions of s. 94 an employee had to show continuous employment in a job which is not an excluded category of work

  • The minimum period of continuous employment is not less than one year ending with the effective date of termination – this is the date that the contract actually comes to an end and if a summery dismissal is unjustified it may be necessary to add the statutory period of notice onto the date of dismissal

  • If the employee can establish that the reason is automatically unfair (pregnancy, trade union activities), then under s. 108(3) the period of continuous employment does not apply


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Unfair Dismissal Qualifications

  • A further requirement under s. 109(1) ERA 1996 is that if on, or before the effective date of termination, the employee has reached the ‘normal retiring age’ or, if more than the age of 65 (whether male or female), then there is no right to present a claim


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Unfair Dismissal Qualifications

  • In addition to qualifying through service, an employee must not fall within one of the excluded categories of employment:

  • Persons employed in the police force

  • Shared fishermen e.g. members and crew paid by a share of the profits

  • Employees who work ordinarily outside Great Britain


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Unfair Dismissal Procedure

  • An employee must initiate proceedings by submitting an IT1 form to the Central Office of Employment Tribunals or Regional Office of Employment Tribunals within three months of the effective date of termination

  • s.111 (2), an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination…


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Effective date of termination

  • Under s.92(6) the “effective date of termination”

  • In relation to an employee whose contract is terminated by notice, means the date on which the notice expires;

  • In relation to an employee whose contract is terminated without notice, means the date on which the termination takes effect; (summery dismissal) and

  • In relation to an employee under a contract for a fixed term, which expires without being renewed under the same contract, means the date on which that term expires.


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The Tribunal

  • Having established that a dismissal has occurred the tribunal has to determine:

  • (a) the reason for the dismissal;

  • (b) whether the reason constitutes a statutory reason (in the ERA 1966)

  • (c ) the tests of substantive and procedural fairness

  • (d) remedies of compensation, reinstatement and re-engagement


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The reason for dismissal- s.92(1) ERA 1996

  • To assist the complainant in a claim for unfair dismissal the complainant is entitled under Statute to be provided with the reason for dismissal

  • Under s. 92(1) an employee is entitled to be provided by the employer with a written statement giving particulars of the reasons for the employee’s dismissal

  • Under s.92(4) there is no need to make such a request if the dismissal occurs while the employee is pregnant or after childbirth

  • An employee who alleges constructive dismissal is not entitled to be provided with a written statement


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The employee:

The formal burden of proof on an applicant in an unfair dismissal complaint is to establish the fact of dismissal under s. 95, whether express, implied or constructive

The respondent, the employer: to show that the reason for dismissal falls within the Statute

Statutory Reasons for Dismissal


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Statutory Reasons for Dismissal – s. 98 ERA 1996 – the heart of unfair dismissal law

  • Under s.98(1) In determining for the purposes of this part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show-

  • (a) what was the reason or, the principle reason for the dismissal, and

  • (b) that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.


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Statutory Reasons for Dismissal – s. 98 ERA 1996 – the heart of unfair dismissal law

  • S. 98 (2) In subsection (10(b) the reference to a reason falling within this subsection is a reference to a reason which-

  • (a) related to the capability orqualification of the employee for performing work of the kind which he was employed by the employer to do, or

  • (b) related to the conduct of the employee, or

  • (c ) was that the employee was redundant, or

  • (d) was that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employee) of a duty or restriction imposed by or under an enactment.


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Potentially fair Reasons for Dismissal heart of unfair dismissal lawCapability or qualification s.98(2)a

  • Consideration of the employer’s appraisal process, the amount of training and supervision required and the extent to which employees are given the opportunity to improve their performance

  • Ill health of the employee-medical condition, permanently unfit for work

  • Qualification – any degree, diploma or other academic, technical or professional qualification relevant to the position the employee holds


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Misconduct s.98 (2)(b) heart of unfair dismissal law

  • Breach of exclusivity and trust and confidence

  • Stealing from the employer

  • A breach of safety instructions

  • Refusal to obey reasonable instructions

  • Refusal to stop wearing a provocative badge

  • Immorality

  • Drunkenness

  • absenteeism


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Redundancy s. 98(2)(c) heart of unfair dismissal law

  • The employer may show that the reason was that the employee was redundant

  • Redundancy situation arises when an employer closes part or all of his business operation, the purposes for which the employee was employed, or alternatively the requirements of the business for workers of a particular kind have ceased or diminished

  • For the purposes of unfair dismissal however, not only must the dismissal be by reason of redundancy but the selection of the employee in question must also be fair


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Employment in contravention of the law s. 98(2)(d) heart of unfair dismissal law

  • A good example is where driving is an integral part of the employee’s work and he is disqualified from driving

  • As usual the reasonableness of the employer’s decision to dismiss must be viewed in the light of the particular circumstances, not least the availability alternative work


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Some other substantial reason s.98(1)(b) heart of unfair dismissal law

  • Genuine reason which the employer honestly believes to be substantial

  • A clash of personalities in the office

  • Pressure on an employer to dismiss an employee from some third parties such as trade unions, customers, clients


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Disciplinary procedure heart of unfair dismissal law

  • Standard procedure

  • The modified

  • Grievance procedure


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Automatically Unfair Dismissal heart of unfair dismissal law

  • Pregnancy or childbirth s. 99(10

  • Health and safety s.100(1)trade union activities

  • The assertion of a statutory right s.104(1)

  • Making a protected disclosure s.103A

  • Non compliance with the National Minimum Wage s.104A

  • Non compliance with the Working Time Regulations s.101A

  • Participation in official industrial action s.238A(2)

  • For a reason connected with a business transfer


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Remedies for Unfair Dismissal if a complaint of unfair dismissal is successful

  • The tribunal has the authority to make an order for:

  • Reinstatement or re-engagement or make an award of compensation

  • Under s.114(1) an order for Reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed


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Compensation –the most common form of redress for unfair dismissal

  • It consists of a basic award, a compensatory award, an additional award and where the dismissal related to the membership or non-membership of a trade union, a special award


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Basic award (BA) under s. 119(1) dismissal

  • It is payable in all classes of unfair dismissal irrespective of loss and is calculated under s.119(1) with reference to the complainant’s continuous employment. The computation of the BA is the same as for redundancy payment, so the present maximum is £7,200

  • To calculate the BA it is necessary to determine: the employees gross pay up to a maximum of £ 240, the length of service up to a maximum of 20 years and his age.


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Compensatory award under s.123 dismissal

  • The tribunal must have regard to the loss sustained by the complainant in consequence of the dismissal (loss of fringe benefits attached to the job).

  • The maximum compensatory award is £ 52,600


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Additional award under s. 117 dismissal

  • It is payable where an employer does not comply with an order of reinstatement or re-engagement and fails to establish that it was not reasonably practicable to comply with the order

  • The amount of the award is not less than 26 nor more than 52 weeks pay