Basic Employment Law

Unfair Dismissal

Every employee with at least one years continuous service with their employer has the statutory right not to be dismissed unfairly. For a dismissal to be fair it must be for one of the potentially fair reasons contained in the Employment Rights Order 1996. These are:

  • conduct
  • capability
  • redundancy
  • retirement
  • some other substantial reason (SOSR)
  • illegality

An employer also may fairly dismiss an employee if the employee cannot continue to work in the position that they held without contravening an enactment.

However

A dismissal can be unfair if the employer has not followed a fair procedure (including where applicable the statutory disciplinary dismissal procedures). Also, the employer's decision to dismiss the employee must be reasonable and fair in all of the circumstances.

If an employee is dismissed they should make an appeal to their employer against the dismissal in order to ensure that they are complying with the statutory disciplinary and dismissal procedures and failure to do so could result in a reduction in any compensation awarded at a Tribunal.

Constructive Dismissal

Sometimes an employer's conduct can be so unreasonable that the employee feels they have no choice but to resign. Where a Tribunal accepts that the employer's conduct is such as to constitute a repudiatary breach or fundamental breach of the contract of employment then the employee can successfully establish a case of constructive unfair dismissal.

Redundancy

As explained above redundancy is one of the potentially fair reasons for dismissing an employee. Employers may need to reduce their work force due to market pressures however the employer must go through a fair process of redundancy selection and their selection criteria must be objectively fair. Furthermore the employer must show that the termination of the employee's employment is due to a redundancy situation in that either the dismissal is attributable wholly or mainly to the fact that:

a) The employer has ceased or intends to cease to carry on business for the purpose of which the employee is employed either generally at the employee's workplace or;

b) The requirements of the business for employees to do work of a particular kind have ceased or diminished (or are expected to do so) either generally or at the employee's workplace.

Also the employer is required by law to follow a step by step procedure in relation to making employees redundant.

Discrimination

It is unlawful to discriminate on the grounds of sex, marital status, civil partner status, race, colour, nationality, ethnic or national origin, religion or belief, sexual orientation, disability and age.

The law states that an employee must not be treated less favourably on any of the above grounds. Discrimination can also take the form of victimisation and harassment. Discrimination can be very obvious or subtle in nature. Employers must be aware of requirements of the discrimination legislation even at the recruitment stage.

Unfair Dismissal - Compensation

Basic Award

This is designed to compensate an employee for loss of job security and is calculated in the same way as the statutory redundancy payment according to a formula based on the employee's age, length of service and weekly pay (subject to a statutory limit which is currently set at £330.00). The basic award is set at a maximum statutory limit currently at £9,900.00.

Compensatory Award

The second element of compensation payable to an employee found to have been unfairly dismissed by an employment tribunal will be such amount as the Tribunal considers just and equitable in all circumstances having regard to the loss sustained by the employee because of the dismissal and is likely to include loss of earnings. It is subject to a current statutory maximum of £63,000.00.

In discrimination cases an employee may also be entitled to an award for Injury to Feelings. The purpose of this award is to compensate the Claimant for anger, upset and humiliation. There is no statutory limit on the amount of the award that the Tribunal may make. Where the injury to feelings is such that it results in the onset of psychiatric illness, a Claimant may recover compensation for personal injury in a Tribunal.

Other Statutory Rights

If an employer breaches an employee's statutory rights the employee can seek remedy through the Industrial Tribunal. Common cases include:

  • right to a contract
  • right to a payslip
  • not to have unlawful deductions made from wages
  • not to suffer a detriment for whistle blowing
  • for part time workers not to suffer a detriment compared to full time workers
  • to parental leave
  • to a 48 hour working week.

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Neil Logan Profile picture Neil Logan

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Christina McCorin Profile picture Christina McCorin

Administration Assistant