Unfair Dismissal came into force with the Industrial Relations Act 1971. Employees are protected from being unfairly dismissed, providing they have been employed 12 months, but there are exceptions.
In these cases, the onus of proof is on the employer to show that the reason, or if more than one, then the principle reason for dismissing an employee falls into one of the categories set out in the Employment Rights Act 1996. These categories are as follows:-
- The employee lacked capability or qualification
- The dismissal was a result of the conduct of the employee
- There was a genuine redundancy
- The continuation of employment would contravene at statute
- Some other substantial reason
Unless the employer proves one of the above mentioned categories, the termination of employment will be automatically unfair. It is to be noted however, that even if the employer does prove that the case comes under one of the above mentioned categories, it is still up to the Employment Tribunal to decide “in accordance with equity and the substantial merits of the case” whether the dismissal was fair or unfair.
In deciding whether a dismissal is fair or unfair, an Employment Tribunal must not substitute its own view for that of the employers; it must, so to speak, look at the situation through the eyes of that employer and decide whether the dismissal was within the range of reasonable responses of that employer.
The Tribunal will also take into account whether or not the employer followed proper procedures on dismissing the employee. Failure to follow the Standard Dismissal and Disciplinary Procedures as set out in the Employment Act 2002 (Dispute Resolution) Regulations 2004 will automatically make a dismissal unfair.
Further, if the employer fails to comply with the new statutory procedures, then the Tribunal must increase any award which it makes to the employee by 10% and may, if it considers it just and equitable, increase it by a further amount of up to 50%.
At present the maximum amount that can be awarded as compensation for Unfair Dismissal is £63,000 and this is in addition to the basic award which can be ordered by the Tribunal up to a maximum of £9,900. These sums are now reviewed annually.
There are a number of cases where there is no cap on the compensation that can be awarded. These include where and employee was trying to assert a statutory right, or where he or she is dismissed for making a protected disclosure under the Public Interest Disclosure Act 1998, where the employee was dismissed because she was pregnant, and also where the dismissal was due to the employee carrying out Health and Safety duties as well as trade union or employee representative activities.
In making an award for compensation in these cases, an Employment Tribunal has power to reduce both the basic award and the compensatory award if it finds a claimant’s conduct contributed to the situation.
We are a firm of employment solicitors who deal nationally in all matters relating to employment law. We are able to pursue or negotiate a claim on your behalf and can provide you with representation anywhere in the country. If you want an assessment of the merits of your case, please contact us without obligation on 020 7408 1338.
