If an employee is dismissed, and believes that the reason (or procedure) was unfair, then they can bring a claim in the Employment Tribunal for unfair dismissal.
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Under the common law, an employer can dismiss an employee at any time provided that he gives full notice and complies with the contract. However, to give protection against dismissal at the click of a finger to employers, the statutory claim of unfair dismissal introduced the concept of fairness.
An employee, who worked at their employers prior to 1st April 2012, must have completed at one years’ service. However, for employees who commenced work after the 1st April 2012, they must have completed at least two years’ service.
The employee must have been dismissed to bring an unfair dismissal claim.
The employer must demonstrate that the main reason for the dismissal was a potentially fair reason. There are 5 permitted reasons to dismiss an employee:
– Capability and qualifications of the employee
– Conduct of the employee
– Employee could not work without breaking the law
– Other substantial reason.
Anything outside of these permitted reasons is usually deemed unfair.
A dismissal is treated as ‘automatically unfair’, regardless of the reasonableness if an employee is exercising rights to do with:
2. Family reasons including parental leave or time off for dependants
3. Representative such as acting as an employee representative
4. Trade union membership grounds and union recognition
5. Part-time and fixed-term employees
6. Pay and working hours including Working Time Regulations and National Minimum Wage.
Once the employer demonstrates that there was a permitted reason, it is then decided whether the employee acted reasonably. This also applies to redundancy situations and if the correct procedure has not been followed, then it is fairly applicable to say that the employer did not act reasonably.
The remedies available for an unfairly dismissed employee are either:
– Reinstatement or re-engagement
Reinstatement is the original job back and re-engagement is a different job with same employer. However, this is a fairly rare remedy and in 2010/11 these remedies were made in 0.19% of all unfair dismissal cases.
Compensation consists of two elements. The first is the basic award which is generally calculated in the same way as a redundancy payment. The second is compensatory award which compensates the employee for the loss they suffered. This is such amount as the tribunal considers just and equitable. There are many factors involved in calculating unfair dismissal awards and we can provide you with an extensive breakdown of what you should expect to achieve.