Unfair Dismissal
If you can establish that you are an employee and that you have been unfairly dismissed, you would be entitled to a finding of Unfair Dismissal and compensation (see later). To win an Unfair Dismissal case you will have to establish the following: -
- That you have been dismissed
- If dismissed you have at least 12 months’ unbroken employment
- Your employer will then have to show the reason for your dismissal -the reason can only be one of 6 permitted reasons:
- misconduct
- lack of capability
- redundancy
- contravention of any enactment
- retirement
- some other substantial reason
Common reasons for dismissal are:
Capability
An employer can dismiss an employee because s/he does not have the capability or qualifications required for the post. This could also cover health issues, which make it impossible for the employee to continue (without reasonable adjustments). Generally, a fair procedure must be followed and the employee must be given a fair chance.
Misconduct
Whilst an employer is entitled to dismiss an employee whose behaviour is inappropriate, he must behave responsibly and fairly in doing so. Broadly speaking, an employer will be expected to show the following: -
- that he genuinely believed that you were guilty of the misconduct complained of (ie: he is not making it up as an excuse to sack you);
- that the belief that you are guilty of misconduct is based on reasonable grounds;
- that all reasonable enquiries and investigations have been carried out before making a decision
Redundancy
For there to be a fair redundancy, 3 elements must be present:
1. Fair method of selection
2. Consultation and warnings
3. Reasonable steps taken to re-deploy staff.
If the above elements are not complied with, the redundancy could constitute unfair dismissal.
Constructive Dismissal
If an employer commits a serious breach of contract which is known as repudiatory breach the employee may resign and claim constructive dismissal on the basis that the employer had brought the contract to an end by the breach. The breach must be serious and go to the very roots of the contract between employer and employee, for example, a reduction in wages. The employee will need one year’s service with the employer to bring such a claim.