Dismissals Guide - Employment Solicitors | Royds Withy King

Introduction

The most common claims brought in employment tribunals are for unfair dismissal, either because the employee considers he/she has been dismissed for a reason that is not “fair”, and/or that an employer has failed to follow a “fair procedure”.

The law is vital to combat widespread age discrimination in the workplace – especially against the older workforce. In a survey undertaken before the legislation came into force, 90% of older people said that they believed that employers discriminated against them because of their age. It will also tackle the increasing shortage of skilled workers and the UK’s ageing population.

If an employment is terminated, there are various potential claims that the employee can bring:

  • for breach of contract – the employee would be claiming that monies due to him/her under the contract are outstanding
  • unfair dismissal – the employee claims compensation i.e. monies which he/she would have received if the employment had continued
  • claims allowed under statute such as discrimination

This section deals with claims that an employee may bring for unfair dismissal before anEmployment Tribunal.

Jurisdiction

The employee must be able to show that he/she:

  • was an employee and not an agency worker or self-employed
  • ordinarily worked in the United Kingdom – even if the employee was employed by a UK Company and paid in sterling in the UK, no claim will be considered by the Tribunal if the employee ordinarily worked outside the United Kingdom
  • brought within 3 months from the date of termination of employment
  • was continuously employed for at least 2 years by the time the employment ends

A fair dismissal

It is for the employer to prove that the reason for the dismissal was fair. There are 5 permissible reasons for dismissal:-

  • the capability or qualifications of the employee for performing work of the kind he/she was employed to do
  • the employee’s conduct
  • redundancy
  • a legal restriction making continued employment impossible
  • some other substantial reason justifying the dismissal of the employee from that position

Once the reason has been established, the Tribunal must satisfy itself as to whether, in the circumstances (taking into account the size and the measure of resources of the employer), the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee.

The ACAS Code of Practice on Discipline and Grievances at Work has persuasive force in the Employment Tribunal – if this Code is unreasonably not followed by the employer, and the employee wins his/her case, the Tribunal may award an uplift in compensation of a maximum of 25%. Similarly if the employee has unreasonably failed to comply with his/her obligations under the Code, a reduction of up to 25% may be made from any award. Failure to follow the Code, however, does not render a dismissal automatically unfair.

Remedies for Unfair Dismissal

Whilst the Tribunal can order reinstatement (the employee gets his/her job back) or re-engagement (the employee is entitled to another job with the employer), the most usual remedy is compensation which usually falls under two headings:-

  • A basic award calculated in the same way as a redundancy payment. If a redundancy payment has been made, this cancels out the basic award
  • Compensation which takes into account the employee’s financial losses as a result of the dismissal including loss of future earnings. The employee must give credit for monies received after the termination

Constructive Dismissal

This is where the employee resigns and claims that such resignation was forced upon him/her by the employer. The employee must show that there was a fundamental breach by the employer or a series of events with a “final straw” which, added together, constitute a fundamental breach. If the employee wins, he/she will be entitled to the same remedies as set out above.

Reduction in Compensation

The award may be reduced on account of the employee’s conduct before notice of dismissal was given, even if this conduct was not known to the employer at the time he/she was dismissed.

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