UNFAIR DISMISSAL

Forming by far the largest proportion of claims brought to the Employment Tribunal, an employee will be able to establish a claim if it can be shown that:

·          there was a dismissal

·          the qualification requirements have been met

·          there was no “fair” reason for the dismissal

·          if there was a “fair” reason, it was not implemented fairly

Hence claims will centre on the reason for the dismissal and the manner in which it was handled. The question of whether or not there has been a dismissal is a technical one. There are a number of different circumstances where a dismissal can occur:

·          where an employee is “sacked”

·          where language is used by an employer that amounts to immediate or future dismissal

·          where an employer gives an ultimatum requiring an employee to resign or be sacked

·          where a fixed term contract is not renewed

Generally the qualification requirement for lodging a claim is 1 year’s continuous service (subject to a few exceptions).

There are five potentially fair reasons for dismissal:

·          capability

·          conduct

·          redundancy

·          statutory illegality

·          some other substantial reason

Even if one of the fair reasons can be established, this does not provide protection against a claim if the manner in which that dismissal was carried out was unfair. A classic example of this can be seen in redundancy. Redundancy requires a formal consultation process to be carried out with a number of steps. If any of these steps are mismanaged e.g. an employer fails to ensure that he or she have taken positive action to investigate whether suitable alternative employment is available, then even if the redundancy was genuine, the dismissal will be open to a claim.

There are three remedies available at Tribunal namely Reinstatement, Re-engagement and Compensation. Reinstatement and Re-engagement are rarely utilised, the relationship having normally broken down irretrievably. Compensation is more common and is provided in two categories, a basic award and a compensatory award. Both these types of award are capped, these caps generally changing upwards each year.