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An employer that dismisses an employee could face a claim for unfair dismissal in the employment tribunal unless It can show a potentially fair reason for the dismissal. There are six potentially fair reasons which this article explains
If there is fair reason the tribunal will determine whether or not the employer acted reasonably in treating that reason as sufficient to justify dismissal. Since April 2009 a new regime under a revised Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code) will apply. If An Employment tribunal finds that the dismissal is unfair, it can order the employer to re-engage or reinstate the employee or (as is more likely in practice) pay the employee compensation. These provisions are contained in the Employment Rights Act 1996 (ERA 1996).
In order to bring a claim for unfair dismissal, an employee must have been dismissed. There will be a dismissal if:
For a dismissal to be fair:
The reason for a dismissal may fall into more than one of the six potentially fair categories, as there is a certain degree of overlap between them. It is therefore important to refer to every potentially fair reason for the dismissal when defending an unfair dismissal claim. Where there is more than one reason for the dismissal, the relevant reason for the purposes of deciding if the dismissal was fair will be the "principal reason" for the dismissal.
Employees have the right to be provided with a written statement setting out the reasons for their dismissal under the ERA 1996, and this document may be used in evidence in any subsequent tribunal proceedings.
Conduct - It is potentially fair to dismiss an employee for misconduct, which may be either a single act of serious misconduct or a series of acts that are less serious.
Capability - For the purposes of an unfair dismissal, "capability" should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality". Capability dismissals fall into two main groups:
Redundancy - A dismissal on the grounds of redundancy is a potentially fair dismissal where the dismissal is "wholly or mainly attributable to" the employer either:
Statutory restrictions - A dismissal is potentially fair if the employee's continued employment would contravene any duty or restriction imposed by or under any enactment. This reason applies where either the employer or the employee would contravene a statutory duty or restriction if the employment was to continue.
Retirement - Where the employer has shown that the reason (or principal reason) for the dismissal was retirement, the question of whether the dismissal was fair must be determined in accordance with section the ERA 1996
SOSR (Some other substantial reason) - The final potentially fair reason for dismissal is that the dismissal is for "some other substantial reason". It is designed to catch potentially fair dismissals that would not fall into any of the other categories. The employer only has to establish that there was SOSR that could justify the dismissal. It is still for the tribunal to decide if it was reasonable for the employer to dismiss the employee for that reason in the circumstances. The courts and tribunals have held that the following dismissals fall within SOSR:
Once the employer has established a potentially fair reason for the dismissal under section the tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason.
There are different ways in which the tribunal should approach the question of the reasonableness of the dismissal. In most cases, the "normal" test for reasonableness under section the ERA 1996 will apply. The tribunal must assess the reasonableness of the employer's conduct, not the level of injustice to the employee.
To establish that a dismissal was on the grounds of conduct, the employer must be able to show that:
When deciding if the employer acted reasonably in dismissing an employee for lack of capability or qualifications, the tribunal will need to consider factors such as:
An employer will normally not act reasonably unless it:
The ERA 1996 requires an employer to establish a potentially fair reason for dismissal and to act reasonably in treating that reason as sufficient to justify dismissal. In applying and interpreting these statutory requirements, the courts and tribunals developed the best practice concept that, in order to act reasonably, an employer had to follow a fair procedure when dismissing an employee.
In certain circumstances, a dismissal is deemed automatically unfair where a dismissal is automatically unfair:
There is no qualifying period of service in most cases. There is no maximum compensatory award in most cases.
In addition, a dismissal will be automatically fair if it is a dismissal:
In these cases, once the employer has established that the relevant reason applies, the dismissal is automatically fair and there is no need to show that the employer acted reasonably in dismissing the employee for that reason.
In order to bring a claim for unfair dismissal, an individual must usually be both an employee and have at least two years service. Only those who are employees can claim unfair dismissal. It is therefore not possible for the self employed or workers to claim unfair dismissal.
Employees who believe that they have been unfairly dismissed should bring a claim in the employment tribunal for unfair dismissal on a form ET1.
The employee must bring the claim for unfair dismissal within three months of the effective date of termination. The tribunal will only extend the time for bringing a claim where it is satisfied that it was "not reasonably practicable for the complaint to be presented before the end of that period of three months".
Employee's burden. At the tribunal hearing of a claim for unfair dismissal, the employee has the burden of proof. They must show that:
If the tribunal finds that the employee was unfairly dismissed, it will then decide what remedy to award. This may occur at a separate remedies hearing the tribunal will consider whether to make any of the following awards (and in the following order):
In most cases, where an employee has been held to have been unfairly dismissed, the only remedy to be awarded will be compensation.
If you require any further assistance, please contact Cyril Dennemont or Marina Vincent on 020 8422 5678.