Employees are protected under the Employment Rights Act 1996 from being sacked or chosen unfairly for redundancy.
Employees are protected under the Employment Rights Act 1996 from being sacked or chosen unfairly for redundancy. All employees are able to bring a claim for unfair dismissal after they have completed one year of continuous service and will have a claim for a redundancy payment after two years’ service.
Unfair dismissal is a statutory right which gives an employee who has the one year’s continuous service, the right to bring a complaint before an Employment Tribunal that they have been treated unfairly or unreasonably by their employer.
There are certain cases where a dismissal will automatically be unfair. If that is the case, the employee only has to be able to demonstrate to a Tribunal that the dismissal was for one of the following reasons to succeed in their claim for unfair dismissal:
- Membership (or non-membership) of a Trade Union activities
- Anything to do with Health & Safety
- Bringing proceedings against the employer for breaking certain statutory employment rights
- Unlawful discrimination on grounds of race, sex, disability, religion or belief, sexual oreintation or age
- Pregnancy or any other reason connected with pregnancy
- When the employee's work is transferred to another employer, under the Transfer of Undertakings (Protection of Employment) Regulations ("TUPE")
- Where an employee refuses to forego a right under the Working Time Regulations
- Where the employee seeks to enforce rights under the National Minimum Wage Act
- Where an employee makes a protected disclosure under the whistle-blowing Legislation
- Where the employee tries to obtain (or prevent) recognition of an independent Trade Union
- Where the employee seeks to exercise the right to be accompanied at a grievance or disciplinary hearing
- Where an employee takes part in lawful industrial action
- Where the dismissal is in connection with the employee's rights with regard to parental, paternity or adoption leave, time off for looking after dependants, maternity leave or the right to ask for flexible working
- Where the employee takes action in connection with part-time workers or fixed term worker's rights
- Where there is a refusal by a shop worker to work on a Sunday
- Where the dismissal is in breach of the Information and Consultation Regulations 2004
- Where the dismissal is in connection with retirement when the employer has not informed the employee of their right to request to continue working or while the "duty to consider" procedure is ongoing
Having seen the many situations where a dismissal will automatically be unfair, the obvious question which needs to be answered therefore, is in what circumstances will a dismissal be fair.
The law provides that it will be fair for an employer to dismiss and employee for any one of the following reasons:
- Misconduct at work
- Lack of capability (or qualifications) to do the job
- Redundancy
- A statutory requirement
- Retirement
- Some other substantial reason
Even if an employer can convince a Tribunal that they dismissed an employee for one of the above reasons, then that employer still has to show that they followed a reasonable procedure as set out in the ACAS (Advisory Consultation and Arbitration Service) Code of Conduct. The employer must also show that the decision to dismiss falls within the realm of reasonable responses which is open to an employer taking into account all of the circumstances of the case.
How would an employee bring a claim for unfair dismissal?
From 6 April 2009, if an employee wishes to bring a claim for unfair dismissal, then he has to lodge a claim at the Employment Tribunal within three months, less one day, from the effective date of termination of the Contract of Employment. This time limit is strictly appplied by the Employment Tribunals.
If a Tribunal finds in favour of an employee, then it is able to order one of a range of remedies. These are as follows:
- Reinstatement - the employee gets their job back with no loss of money or security. This is rarely ordered by the Tribunal.
- Engagement - the employee gets another job with the same employer - again this is rarely ordered.
- Compensation - a basic award will be calculated in a similar way to a redundancy calculation and as well as this basic award, the employee who has been unfairly dismissed will be entitiled to receive a compensatory award which will compensate the employee for the financial losses incurred as a result of the dismissal. These financial losses on the whole, amount to lost income between the termination of the job for which they were unfairly dismissed and the time it takes to secure a suitable alternative job.
The maximum compensatory award payable by a tribunal is currently £66,200 and this is updated every year. It is however possible that this compensatory payment can be increased or reduced if either party fails to follow the ACAS Code of Practice. The award in these circumstances can be increased or reduced by up to 25%