unfair dismissal - an overview
DESCRIPTION
These slides compliment the free webinar presented by Helen Gardiner Barrister of St Philips Chambers Leeds. This webinar is the first in a series of 4 relating to Unfair Dismissal. It gives an overview of unfair dismissal and touches on the following areas: * Employment Rights * Acas Code of Practice * Who can claim * Potentially fair reasons * Capability * Conduct * Redundancy * Statutory restriction * Some other substantial reasons * The fairness test * Procedure for claiming The other 3 webinars are planned for the first quarter of 2015 and details for booking will be available soon. If you would like to receive an invitation to join, then please send a quick email to [email protected] and we will add you to the mailing list. You can access a full recording of this webinar on You Tube http://bit.ly/1tbZiKI or why not join our LinkedIn Webinar Network to access all our archives http://linkd.in/1acZPdh Thanks for your interestTRANSCRIPT
Unfair Dismissal – How to Avoid
An Employment Tribunal By: Helen Gardiner
On: 5th November 2014 @ 13:00
FREE
WEBINAR
Starting
Soon
Please note that the contents of this webinar do not constitute legal
advice.
UNFAIR
DISMISSAL
- an overview -
by
Helen Gardiner
Employment Rights Act 1996 (“ERA”)
Dismissal unfair unless:
• the employer can show that the reason (or the principal
reason) for the dismissal was a potentially fair reason.
There are 5 potentially fair reasons, as we shall see; and
• the tribunal finds that, in all the circumstances (including
the employer’s size and administrative resources) the
employer acted reasonably in treating that reason as a
sufficient reason for dismissal. That means that the
dismissal must be both procedurally and substantively fair.
Unfair dismissal – an overview
Acas Code of Practice on Disciplinary
and Grievance Procedures
Unfair dismissal – an overview
Applies to dismissals for misconduct or poor performance.
Must be taken into account by tribunals.
ESSENTIAL READING!
Download at:
http://www.acas.org.uk/media/pdf/k/b/Acas_Code_of_Practice_1_
on_disciplinary_and_grievance_procedures-accessible-version-
Jul-2012.pdf
Who can claim?
• Employees.
• In most cases, need 2 years’
continuous service.
• No qualifying period necessary
for automatically unfair
dismissals, or where dismissal
is because of political
opinions/affiliation.
• For dismissal in circumstances
of medical suspension,
qualifying period is 1 month.
Unfair dismissal – an overview
What is a
dismissal?
Termination by employer.
Expiry of fixed term conract.
Constructive dismissal i.e.
resignation.
Unfair dismissal – an overview
Potentially fair reasons Capability/qualifications
Conduct
Redundancy
Breach of statutory
duty/other restriction
Some other substantial
reason (“SOSR”)
Capability
Skill, aptitude, health or any other physical/mental quality.
Capability must relate to the work the employee was
employed to do.
Usually 2 main groups:
• Dismissal because of an employee’s poor performance; and
• Dismissal because of an employee’s ill health.
Unfair dismissal – an overview
Conduct
• Either single act of serious misconduct or series of acts
that are less serious.
• Make sure examples in staff handbook are not exhaustive.
• Don’t be prescriptive in assessment of gross misconduct.
• Can be dismissed for conduct outside of the workplace so
long as it affects/could affect employee when he is doing
his work.
Unfair dismissal – an overview
Conduct continued
To establish dismissal was on grounds of conduct, must establish
that:
• at the time of dismissal, the employer believed the employee to
be guilty of misconduct.
• at the time of dismissal, the employer had reasonable grounds
for believing that the employee was guilty of that misconduct.
This goes to the question of reasonableness.
• at the time that the employer formed that belief on those
grounds, it had carried out as much investigation as was
reasonable in the circumstances. Again, this goes to the
question of reasonableness.
Unfair dismissal – an overview
Redundancy
Redundancy situation? Only if dismissal wholly/mainly attributable
to:
• the employer ceasing or intending to cease to carry on the
business for the purposes of which the employee was so
employed;
• the employer ceasing or intending to cease to carry on that
business in the place where the employee was so employed; or
• the employer having a reduced requirement for employees to
carry out work of a particular kind or to carry out work of a
particular kind at the place where the employee was employed
to work.
Unfair dismissal – an overview
Redundancy continued
• Put employees on notice they are at risk.
• Consult.
• Make a genuine attempt to find suitable alternative roles.
• Beware statutory requirements for consultation in mass
redundancy situations.
Unfair dismissal – an overview
Statutory restriction
Potentially fair if the employee could not continue to be
employed without him or the employer breaching statute.
Egs:
• Breach immigration laws.
• Lost driving licence.
• Not got necessary qualifications.
Unfair dismissal – an overview
Some other substantial reason
• Catch all provision.
• Only need to establish a reason for the dismissal which is
of a kind that could justify the dismissal of am employee
holding the job in question. Don’t need to show that it
actually did justify the dismissal.
Unfair dismissal – an overview
The ‘fairness’ test
Section 98(4) ERA:
The determination of the question of
whether the dismissal is fair or unfair
(having regard to the reason shown by
the employer) –
(a) Depends on whether in the
circumstances (including the size
and administrative resources of the
employer’s undertaking) the
employer acted reasonably or
unreasonably in treating it as a
sufficient reason for dismissing the
employee, and
(b) Shall be determined in accordance
with equity and the substantial merits
of the case.
Unfair dismissal – an overview
Two limbs to the
fairness test
• Substantive fairness
• Procedural fairness
Polkey v AE Dayton Services Ltd:
o Procedurally unfair dismissal is
always unfair. Can’t argue “no
difference”.
o Reduction in compensation to
reflect the chance there would
have been a fair dismissal if
employee wasn’t unfairly
dismissed.
Unfair dismissal- an overview
Fair procedure
Basic principles:
• Employee should know
they are at risk of
dismissal and why.
• They should be allowed
to make representations.
• They should be given a
right of appeal.
Acas Code:
• Investigate issues.
• Inform employee of
issues in writing.
• Conduct a disciplinary
hearing or meeting with
the employee.
• Inform the employee of
decision in writing.
• Give employee right of
appeal.
Unfair dismissal – an overview
Substantive
fairness
• Was the decision to dismiss
within the range of reasonable
responses that a reasonable
employer in those
circumstances and in that
business might have adopted?
• Tribunal must not substitute its
view for that of the employer.
• Test applies to investigation and
the decision to dismiss.
Unfair dismissal – an overview
Reasonableness - capability Tribunal will consider:
• Whether the employee knew what was required of them.
• Whether the employer took steps to minimise the risk of poor
performance.
• Whether there was a proper appraisal of the employee and the
problem was identified.
• Whether the employer provided training, supervision and
encouragement.
• Whether the employer warned the employee of the consequences of
failing to improve.
• Whether the employer gave the employee a chance to improve.
• In some cases, whether the employer considered alternative
employment.
Unfair dismissal – an overview
Reasonableness - SOSR
Depends on the circumstances of the case, but could involve
the employer:
• Investigating the situation.
• Consulting with the employee.
• Warning the employee of the risk of dismissal.
• Giving the employee an opportunity to state their case.
• Exploring alternatives to dismissal.
• Balancing the needs of the employer and employee.
Unfair dismissal
Automatically unfair reasons for dismissal
• If the employee was dismissed “for the purpose of
safeguarding national security”.
• If the employee was participating in unofficial industrial
action at the time of dismissal.
• If the employee was participating in official industrial action
at the date of dismissal and the employer has dismissed all
participating employees.
• If the employer is conducting a lockout at the date of
dismissal and has dismissed all employees with a direct
interest in the dispute.
Unfair dismissal – an overview
Procedure for claiming
1. Employee must contact Acas to see if the complaint can
be settled through Acas early conciliation.
2. If not settled, must issue a claim within 3 months minus
one day of dismissal (though limitation extended by
conciliation process).
3. At tribunal, if successful the employee may claim
reinstatement, reengagement or compensation.
Unfair dismissal – an overview
Thanks and Questions
Unfair dismissal – an overview
Contact me:
Helen Gardiner
Tel: 0113 244 6691
www.st-philips.com
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On: 19th November 2014 @ 13:00
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