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You are entitled to a remedy
In a case where the dismissal of an employee for the lack of capability,
qualifications or because an illness occurs, by law, an employee who is
dismissed unfairly is entitled to a remedy. A dismissal may be unfair if it is
not for a permissible legal reason or it is unfair in all the circumstances.
Lack of capability or qualifications is a permissible reason for dismissal.
To claim unfair dismissal you must satisfy the following conditions:
You must have worked under a contract of employment or apprenticeship, for
your employer, continuously for at least 12 months; and
Your employment terminated in one of the following ways:
- With or without notice; or
- If you had a fixed-term contract, it expired without being renewed (and you
did not waive your right to make a claim); or
- You resigned (and had the right to resign) because of a serious breach of
contract by your employer (which you did not waive), or because you were forced
to resign; or
- You were not allowed to return to work at the end of your maternity leave;
On the effective date of termination (as defined), you were not over the
normal retirement age and in any event not over 65; and
You are not an excluded employee, for example on occasions members of the
Is it fair?
You are dismissed for lack of capability if you cannot do your job properly.
You are dismissed for lack of qualification if you no longer (or never did)
possess the technical, professional or academic qualifications necessary for
your job. Since dismissal for capability or qualification is a permissible
reason, the main issue is whether it was fair.
Your dismissal may be unfair if your employer did not follow a fair procedure
and/or it was not reasonable to dismiss you, for example, because you could be
moved to another position. A tribunal will look at all the relevant
circumstances, including your employer’s size and administrative resources. Your
employer may have to show that he set out in detail the complaints about you;
what you need to do to improve; the time within which you should improve; and
the consequences of failure to improve (including the threat of dismissal). Your
employer may, in some circumstances, be expected to offer you training.
If you cannot do your job because of a long-term illness, your employer
should consult you and your doctor, to establish your future prognosis. They
should consider this notwithstanding their business requirements.
The most common form of remedy is compensation. This is divided into a basic
award and a compensatory award. The basic award depends on your age, length of
employment and earnings. The compensatory award depends on your actual losses
suffered and is a capped amount. You must also take steps to minimise your
losses, for example, by looking for another job. If you fail to do so, your
award may be reduced. Earnings from your new job may reduce your damages.
Alternatively, you may seek to be reinstated in your old job, or reengaged by
the respondent in a position similar to your old job, but such orders are rare.
You should make your complaint at the employment tribunal which is local to
where you worked. Your complaint must arrive at the tribunal within 3 months,
beginning with the effective date of termination. Only in truly exceptional
circumstances may the tribunal allow you to make a later complaint, if it
considers that it was not reasonably possible for you to make the complaint on
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Article Published/Sorted/Amended on Scopulus 2008-04-08 09:49:28 in Legal Articles