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Unfair dismissal

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Issued on 24th October 2010

The law on unfair dismissal does no more than give employees a legal right to be treated in the way in which a fair and reasonable employer would treat them anyway. For an employer to dismiss an employee fairly, he or she must both:

a) have a valid reason for dismissing the employee,and

b)act reasonably in treating that reason as a sufficient reason for dismissing the employee.

Criteria to satisfy for unfair dismissal claim?

To qualify or to bring an unfair dismissal claim in the Employment Tribunal an employee must meet a number of criteria:

1. They must be an employee (rather than self-employed or, in the majority cases working though agency).

2. They must normally have at least one year's continuous employment

3. They must be aged 65 or below (or the normal retirement age for that particular position)

4. They must be in employment in Great Britain

5. They are within the 3 month time limit for bringing a claim to the Employment Tribunal

Is the dismissal fair?

The Employment legislation lists five specific types of reason which can justify dismissal. I have listed this below:

1. Conduct

This is by far the most common reason for dismissal and the one which leads to the largest number of complaints of unfair dismissal.

2. Capability

This is where the employer will argue that the employee is unable satisfactorily to do or does not have the qualifications for the job.

3. Redundancy

In general, an employee can have no grounds for claiming unfair dismissal if the dismissal was because of redundancy that is because the employer had no work or insufficient work for the employee to do.

4. A Statutory Requirement

This may prevent the employment continuing, for example where a lorry driver has lost his driving licence and there is no other suitable job available for them.

5. Some other Substantial Reason

It may be argued that the above reasons are likely to cover almost every case where dismissal is necessary. However there may be situations which arise for example, where an employer has a good reason for dismissing an employee which is not one of those listed above. An example would be where an employee was employed on the basis of medical cover for another employee who was off sick and is returning to work.

Has the employer acted reasonably?

It is not just enough for the employers to argue the above reasons, they will need to show evidence to the tribunal that they have acted reasonably. For example if dismissing on the ground of conduct, when considering if this is a fair ground will look at what the conduct of the employee was, whether they had been given prior warning and so on.

Tribunal when deciding whether an employer has acted reasonably in treating the chosen potentially fair reason as a sufficient reason for dismissing the employee will look at the size and administrative resources of the employer and the substantial merits of the case.

Conclusion

Although there are many grounds on which an employer may be able to rely on when dismissing a emloyee, however they will need to show to the tribunal that they have acted reasonably. If you have been dismissed by your employer and are unsure whether you have a valid claim or not, you are recommended to seek legal advice.

Rashidul Islam is a Trainee Solicitor with Lawdit Solicitors and can be contacted by email on rashidul.islam@lawdit.co.uk


About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.



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Article Published/Sorted/Amended on Scopulus 2010-11-01 15:23:40 in Legal Articles

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