Types of Claims
(I). Unfair / Constructive Dismissal
Employees with one year's continuous service who have been dismissed (with or without notice) or resigned in response to the employer's repudiatory conduct/fundamental breach of contract (i.e. constructive dismissal) may be able to make a claim for unfair dismissal. Any claim for unfair dismissal must be received by an Employment Tribunal within 3 months of the dismissal. For example, someone dismissed on 15 June would have to submit their ET1 before midnight on 14 September, while someone dismissed on 1 December would have to submit a claim before midnight on 28 February.
(a). Permitted Reasons for Dismissal
Employers are only able to dismiss an employee for one (or more) of the permitted reasons outlined in section 98 of the Employment Rights Act. Those reasons are:
• Capability - e.g. poor performance; ill health
• Conduct - e.g. fighting at work; stealing
• Some other substantial reason
The Employment Tribunal must then decide if it was reasonable
for the employer to dismiss in all of the circumstances, including
the size and resources of the employer. The Tribunal will look at
what the employer knew at the time and consider if the action it
took was in the reasonable range of responses.
Poor performance: check what the employer has done to keep the employee in work. Have they offered training? Support? A less demanding position? Have any warnings been given?
Ill health: check if the employee is disabled within the definition of the Disability Discrimination Act, as disabled employees are entitled to ask their employer to make reasonable adjustments to accommodate their disability. Keep the employer informed as the condition may improve. Is the employee able to perform a different duty?
The employer must have a genuine belief of the employee's guilt which must be based on reasonable grounds usually following an investigation. The Tribunal's function is to examine the fairness, not the correctness, of the decision. Check the contract of employment as this normally provides examples of what constitutes misconduct. Check the employee's history - have they received any warnings? Are they still valid? Are they clear and applied consistently?
Applies if the employer is:
• Closing down an establishment
• Ceasing or intends to cease business
• Ceasing or intends to cease work of a particular kind
The position is made redundant not the person. The employer must
i Select the pool from which redundancies are to be made
ii Select individuals from that pool. Any selection from the pool must be fair and based on neutral criteria.
The employees should be offered any alternative positions available.
The question of whether retirement is the reason for dismissal is determined by the Tribunal looking at the dismissal procedure that the employer has followed. Employees should be notified six months to one year prior to the proposed date of retirement of that date and of the right to request working beyond it. If this is requested the employer has to hold a meeting and consider the request and if it refuses offer an appeal. Provided the employer follows this procedure and the employee is aged 65 or over then there is no scope for an unfair dismissal claim or any other type of claim if the request to work beyond the retirement date is refused.
This is where illegality prevents an employee from doing their job. The classic example is a driver losing their licence. A process involving a meeting before any decision is made plus consideration of any alternatives to dismissal will generally be required for a fair dismissal.
vi Some other Substantial Reason (SOSR)
This is the "catch all" category allowing employers to dismiss for reasons other than the specific ones listed in section 98 of the Employment Rights Act 1996. The employer has to follow a fair procedure and the Tribunal must agree that the reason was "substantial" on the facts of the particular case, meaning that cases are very fact specific and a reason that is "substantial" in one case will not necessarily be in another. Reasons which have been held to be substantial in past cases include business reorganisations that were not redundancies, protection of a business where the employee refused to sign restrictive covenants and serious personality clashes between employees who had to work in close proximity.
(b.) Automatically Unfair Dismissals
Certain dismissals will be automatically unfair if the reason for the dismissal relates to:
• Pregnancy and childbirth
• Parental leave
• Health and safety reasons
• Seeking flexible working
The employer will give evidence first if they concede that there has been a dismissal. If there is a dispute about a dismissal, normally in cases of constructive dismissal, then the employee will go first.
Basic Award: calculated in the same way as the redundancy calculation
Compensatory award: Can claim losses resulting from dismissal including loss of earnings and additional benefits such as pensions.