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Dismissal

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A nyone employed for two years or more qualifies for the statutory right not to be unfairly dismissed.

The general position is as follows:

  • The employee must have been employed under a contract of employment. If not, there can be no claim for an unfair dismissal. However; there are exceptions to this rule.
  • Must have been dismissed
  • Employed in the UK at the date of termination and the contract of employment must be governed by the law of England and Wales.
  • The claim must be issued in the Employment Tribunal within three months- less one day- from the date of the dismissal.
  • If the claim includes discrimination must be filed in the Employment Tribunal within three months of the last act of discrimination regardless of whether or not there was an actual dismissal. This rule is strict!

There are times when the 2 year qualifying period is not a requirement to file a claim for unfair dismissal and come under the following heading below:

Automatically Unfair Dismissal claims

If the primary reason for the dismissal was connected with any of the following:

  • Health & Safety
  • Asserting a statutory right e.g. the statutory right to paid holidays.
  • Whistle-blowing or victimization
  • Spent convictions
  • Maternity/Paternity rights
  • Trade union membership or having participated in industrial action
  • Employee Representative
  • Enforcing rights under flexible working conditions.

Constructive dismissal

Such a claim may be considered in the event of there being a “fundamental” breach of the employment contract. In such circumstances; an employee may resign with or without notice and file a claim for constructive dismissal.

Resigning is very a drastic measure and should only be considered when all the other available options have been considered and failed.

It is necessary to prove the following:

  • A fundamental breach of contract. This can happen where the circumstances are such that entitles the employee to resign with or without notice or where the behavior of the employer is so unreasonable, the employee has no other option but to resign.
  • The resignation is a timely response to the breach. Delaying action is generally taken as acquiescence or acceptance of the breach.
  • The employer is made aware of the resignation.
  • The dismissal itself is unfair.

For a constructive dismissal claim to succeed the following criteria has to be satisfied:

  • The breach must be fundamental and of such a nature that goes to the core of the employment contract rendering it incapable of functioning any further
  • A fundamental breach may entail: non payment of wages or persistent delays in the payment of the same. Other examples are: demotion or unilateral changes to the job description and so on.
  • Breach of the implied trust and confidence by the employer which undermines the employment relationship.
  • A breach of the implied trust and confidence may entail: Bullying and harassment on any of the prohibited grounds under the Equality Act 2010, such as sex, race age, victimization etc. Or a failure on the part of the employer to take action against the perpetrators.

This list is not exhaustive and each case is considered on its own facts.

Wrongful Dismissal

A wrongful dismissal is a contractual claim. As a general rule the employer may terminate the employment contract at any time and for whatever reason within the first 24 months of its existence. Provided the employer pays the statutory minimum notice for one/two weeks or whatever notice an employee may be entitled to under the terms of his/her contract there can be no claim for damages for breach of contract/wrongful dismissal.

The statutory minimum notice entitlements are: after one month’s employment; if the employee is 41 years old and under: one week –increasing by a week for each year of continuous service. Over 41 years and above it is 1.5 weeks.

Suspensions, Disciplinary Action & Action in the Employment Tribunal

Under certain circumstances, for example, allegations of gross misconduct employers are entitled to suspend an employee pending an investigation. The circumstances under which an employer can assert this right are generally outlined in their disciplinary procedure, reference of which is generally in the employment contract/S1 Statement or in the or the staff handbook.

Taking legal Action

Where an employment law dispute is brought often depends on the nature of the dispute and its value. Claims concerning breach of contract/wrongful dismissal, injunctions can be brought in the civil courts. Breach of contract claims can be brought either in the courts or in the Employment.  The maximum award for a breach of contract in the Employment Tribunal is £25,000. Claims concerning breach of a statutory right, such as unfair dismissal, redundancy, wages, discrimination, maternity rights and so on are brought in the Employment Tribunal.

Employment Tribunal has no jurisdiction over the following:

  • Personal injury claims
  • A breach of a contractual term relating to intellectual property, including copy right, patent and trade marks
  • Enforcing a term relating to a confidentiality clause or a covenant relating to restraint of trade.

 

Action in the Employment Tribunal

  • Such an action should only be considered when all other means of resolving the dispute have failed. An outstanding claim can be settled at any time before the full hearing. However; new rules on fees for filing claims at the Employment Tribunal were implemented in July 2013. Depending on the claim and its complexity, the issue fees are now £160 and £230 while the hearing fees are £230 and £950.
  • Under the new rules the Employment Tribunal where appropriate will encourage the parties to use the conciliation services of ACAS, “judicial or other mediation or other means of resolving the dispute to agreement” This incurs further costs. The fees for judicial mediation are set at £600 with the employer footing the bill. The earlier the dispute is settled the better before tribunal fees/judicial mediation fees are incurred. See here: www.gov.uk/government/uploads/system
  • Employment Judges now have the power to dismiss a claim or response or part of it before proceeding to a hearing if they consider it has no reasonable prospect of success.
  • Claims must be filed within three months of the effective date of termination.

 

Before filing a claim it is necessary

  • To seek  legal advise with respect to the overall merits of the claim
  • An early assessment on the actual value of the claim in relation to its overall costs.

 

Further information on: www.employmenttribunals.gov.uk


Costs

Unlike the civil courts, generally the losing party does not have to bear the burden of the opposing party’s costs following a hearing in Employment Tribunal. However, both parties are under a duty to behave reasonably in the conduct of their matter, failing which the Employment Tribunal has the power to impose costs.

Employment Judges now have the power to carry out detailed assessments of costs without the need to make an application for costs over £20,000 in the county court.


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