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UNFAIR DISMISSAL LAW

  Do You Qualify To Bring a Claim ?
To qualify for Unfair Dismissal protection you must meet the following conditions:

1 You must be an employee working full or part-time.
2 You must have 2 years' continuous employment.
3 You are below 65 or the normal retirement age for your job at the date of your dismissal.
There are exceptions to this if your dismissal is based upon discrimination. See Exceptions.
4 You normally work in the UK.
5 Your job ended less than 3 months ago, or 4 months ago if you have notified ACAS under the
Early Reconciliation Scheme.

Unfair Dismissal Test
Any claim for Unfair Dismissal must go through a 2 stage test.

1 Was the dismissal for a fair reason ?

And if the dismissal was for a fair reason

2 Was the dismissal dealt with fairly ?

This means that an employer can dismiss an employee for a perfectly valid reason, but the way in which it was handled was unfair and so an Unfair Dismissal claim can be made.

Reasons for Dismissal
The following is a list of some of the fair reasons for dismissing an employee:

a) Capability
Qualifications - does the employee have the necessary qualifications for the job and is a particular qualification actually needed for this type of job ?

Incompetence - this can be repeated incompetence or a very serious individual incident, but was the employee trained, were warnings given ?

Health - an employee who is genuinely ill on a regular basis, what was the illness, how long would the employee be off, did the employer consider alternative work for the employee ?

b) Conduct
Here are some of the possible situations where an employees conduct may have given the employer good reason to dismiss them:

Theft. Corruption, including taking bribes. Being drunk at work. Taking drugs at work. Abusive behaviour. Leaking confidential documents or information. Hacking into computer files, including stealing passwords. Being absent from work on a regular basis. Constantly late for work. Unsuitable work clothes or appearance. Taking holidays without informing your employer. Unsuitable conduct with other members of staff during office hours. Unsuitable conduct outside working hours that has an effect on your job. Even telling your employer exactly what you think of them.

All of the above may be persistent behaviour for which an employee has received earlier warnings or they may be individual incidents that are of a serious nature.

c) Redundancy
The employer must have a fair procedure for selecting who is going to be made redundant. Once the method has been decided upon the employer must stick to it. One of the most commonly used methods is "last in - first out "An employer cannot select an employee for redundancy if it is based upon one of the Unfair Dismissal Exceptions.

d) Breaking the Law
For example a foreign worker whose work permit has expired, to continue to employ them would break the immigration laws. However, the employer should check whether the situation can be made legal before dismissing the employee.

e) Any Other Reason
This is very wide and is used to cover virtually every other possible reason. For example, where a business is being reorganised and some employees refuse to reorganise along with it or where they are no longer considered suitable.
For example an employee who refused to use computers when they were installed despite training was fairly dismissed.
It can include dismissing an employee because an important client demands it.

Fairness of Procedure
The test here is whether the employer used a fair procedure and was it reasonable for the employer to finally decide to dismiss the employee once the procedure had been carried out.

An Employment Tribunal would consider some of the following:
1 Was the employee given a fair hearing by the employer ?
2 What evidence was used at the hearing and was it all used ?
3 Did the employee have a representative at the hearing or a Trade Union official ?
4 If there was more than one employee involved, were they all treated in the same way ?
5 Had the employee done this before ?
6 Did the employer consider warnings, were these used in the past ?
7 Did the employer consider the overall performance of the employee, for example did the employee
previously have a long record of good work and behaviour ?
8 Could the employer have disciplined the employee instead of dismissing them ?
9 Did the employee have an effective right of appeal against the decision ?
10 Was the whole procedure carried out in the same way as previous procedures, if not how did it differ and why ?

Constructive Dismissal

This is where the employee leaves their job due to the employers behaviour. For example, the employer has made the employees life very difficult and the employee feels that they cannot remain in their job. When this happens the employees resignation is treated as an actual dismissal by the employer, so the employee can claim Unfair Dismissal.
Examples of Constructive Dismissal can include:

1 Not supporting managers in difficult work situations.
2 Harassing or humiliating staff, particularly in front of other less senior staff.
3 Victimising or targeting particular members of staff.
4 Changing the employee's job content or terms without consultation.
5 Making a significant change in the employee's job location at short notice.
6 Falsely accusing an employee of misconduct such as theft or of being incapable of carrying out their job.
7 Excessive demotion or disciplining of employees.

An employee can resign over one serious incident or due to the build-up of a number of incidents. However, the employee must resign soon after the incident in order to be able to rely upon it. Generally the actions of the employer must be a serious breach of contract.

Constructive Dismissal & Unfair Dismissal
An employee being constructively dismissed only proves that they were dismissed, it does not automatically prove
that the dismissal was unfair. The employee has to go on and prove that the dismissal was also unfair.

This can be a tricky area. For example, an employee can resign and claim Constructive Dismissal due to the employers behaviour, but the employer could turn around and say that although the employer breached the employment contract, it arose through the reorganisation of the business. The chances are that the employer will be given the benefit of the doubt. The reason for this is that Employment Tribunals do not like to interfere with business management.
If on the other hand the employee resigned because he or she thought that they had been treated too harshly over a disciplinary matter, it would be easier for the Tribunal to look for and find unfairness.

Compensation & Remedies
1 Reinstatement
This is where an Employment Tribunal will place an employee back in their old job and pay compensation for the loss of wages for the time out of the job.

2 Re-engagement
The employee returns to a similar job with the employer.
It is very rare for either of these to be ordered by an Employment Tribunal. The reason for this is that they are reluctant to force an employer to take an employee back.

3 Compensation
This is what usually happens if the employee wins their case. The maximum award is now £74,200.

Submit an Unfair Dismissal Assessment Form that will enable us to determine whether we may be able to bring a compensation claim on your behalf.


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