Unfair Dismissal

Every person who is employed has a legal right not to be unfairly dismissed from his or her job. If an employer terminates an employment contract, whether with notice or otherwise, then an Employment Tribunal can be asked to consider whether or not the employee has been fairly dismissed.

The employee must have worked for the minimum qualifying period of at least a year and the claim for compensation for unfair dismissal must be made to an Employment Tribunal within three months from the date of termination of the employment contract.

At the tribunal, the onus is on the employer to show the reason or principal reason for a dismissal is one of the following which are capable of being a ground for a fair dismissal:-Capability or qualification of the employee for performing the job, Conduct of the employee, Retirement (subject to certain further rules), Redundancy, that the employee could not continue to work in his or her job without breaching some legal rule (e.g. disqualification from driving when the employee is a driver) or some other substantial reason justifying the dismissal

The Tribunal considers all the circumstances including the size of the employer’s business and then decides whether or not the employer acted reasonably or otherwise in treating the reason given as a sufficient reason for dismissal. A Tribunal may decide an employee was “partly “ responsible for his or her dismissal. Obviously if the employer gives no reason, the dismissal is likely to be found unfair.

Even with a good reason for dismissal, failure to follow good procedures can still result in an unfair dismissal finding. For example, if the dismissal was for redundancy, in order to avoid being legally unfair, it should normally involve notification to employees about the risk of redundancy, a genuine consultation procedure concerning redundancies (there are specific legal provisions for handling redundancies of more than 20 people), a fair selection process, notification of redundancy decisions in writing, and opportunity for the employee to appeal.

The emphasis is on the parties acting reasonably throughout the procedure and failure to act reasonably can result in an increase or decrease of an award in favour of the wronged party of up to 25% of any compensation award.

By Chris Brown

This article is provided for general information purposes only and represents our understanding of the relevant law and practice as at the date of uploading. This article should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.

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