11c Unfair Dismissal Flashcards
What is unfair dismissal and how would you claim it?
The legal right for employees to claim at the Employment Tribunal if they feel they have been dismissed unfairly.
Who can’t claim for unfair dismissal?
- Employees engaged to work outside the UK.
- Workers who were on an unofficial strike or other unofficial legal action.
How long would you have to have been working somewhere to claim for unfair dismissal?
Continuous employment for 2 years but this is not required if the employee is dismissed for an automatically unfair reason.
Is it possible to exclude weeks from the calculation of continuous employment?
It’s possible to exclude time on strike or service of the armed forces.
What must an employee prove to claim unfair dismissal?
- They were dismissed (employer end their contract or constructive dismissal).
- They had 2 years of service.
What is constructive dismissal?
Employee ends the contract but as a result of their employers actions meaning they can treat themselves as dismissed.
When can constructive dismissal not be claimed?
When the employee does not leave at once and continues to work for the employer for a length of time without leaving. This affirms the contract therefore losing the right to claim.
What happens if an employee who served 2 years is not provided a written statement with reasons of dismissal within 14 days?
Employee can claim for unfair dismissal based on lack of reasonable dismissal.
What actions do not constitute a dismissal?
- Resignation of employee unless it’s constructive dismissal.
- Contract is frustrated.
- Parties come to mutual agreement to end contract.
What are the circumstances for automatically unfair dismissal?
- Victimism of whistleblowers.
- Become pregnant/maternity leave.
- Become part of Trade Union or refusing to join one.
- Assertion or statutory rights.
- Redundancy - unfair to chose you.
- Spent conviction
- Taking steps to protect yourself when in serious/imminent danger.
What is a spent conviction?
A criminal conviction under the Rehabilitation of an Offenders Act that should be ignored after a set period of time.
What happens if you are found to be unfairly dismissed due to an automatically unfair reason?
Entitled to an additional compensation payment.
What are the statutory fair reasons for dismissal?
- Capability/qualifications (employee should be given opportunity to improve)
- Conduct/misconduct (must be gross or repeated misconduct)
- Redundancy as long as employer follows fair selection procedure.
- Statutory restriction e.g. visa runs out.
- Other substantial reason.
Once the employment tribunal found the dismissal was fair, what must they decide?
Whether on the basis of equity and the substantial merits of the case, the employer acted reasonably.
What is the reasonableness test?
- Whether the reason was serious enough to justify dismissal.
- Whether the employee adopted reasonable procedure in the decision making and manner of dismissal.
