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Related to unfair dismissal: Wrongful dismissal
unfair dismissalin the employment law of the UK, a termination of the employment of a worker for a reason that is not permitted under statute. This area of law is statutory and is superimposed on the common law of employment. An employee is ‘dismissed’ if the employment is terminated without notice or where a fixed term contract expires without notice. There are ‘constructive’ dismissals, where the employee terminates because of the employer's conduct. As to ‘unfair’, the law deems a dismissal as a result of trade union membership or activity or non-membership of a trade union as unfair. Pregnancy is deemed to be an unfair reason. Making a person redundant can be unfair if the employee was wrongly selected. The general rule as to fairness depends upon two factors:
- (1) whether the reason for dismissal related to the employee's capability, qualification or conduct or was that the employee was redundant or that his continued employment would itself be a breach of the law or whether there was some other substantial reason of a kind such as to justify dismissal; and
- (2) whether having regard to the reason shown, the employer acted reasonably or unreasonably in the circumstances in treating that reason as sufficient reason for dismissal. The employer must show the reason for the dismissal. There is no BURDEN OF PROOF either way in relation to the proof of the reasonableness of the dismissal. The test applied is the test of the reasonable employer.
The remedies available for unfair dismissal are of considerable practical importance in that the remedies are of a special nature. The cases are dealt with not by the ordinary courts but by the EMPLOYMENT TRIBUNALS. The principal remedy is reinstatement, which gives the employee his job back just as if he had never been unfairly dismissed in the first place, with the same rights and seniority as he had before. ‘Re-engagement is a lesser remedy, the employee being re-hired in a job similar to the one he lost but not with the same continuity and seniority. Various factors are considered in making such an order, and it may not be granted, either because the employee does not want to go back or because the employer offers to demonstrate that it would be impractical to have the employee back again. The alternative remedy is a payment comprising a basic award resembling a REDUNDANCY payment, and a compensatory award that is to be just and reasonable. The award may be reduced insofar as the employee has contributed to his own dismissal. There are limits on the maximum that can be paid in ordinary cases but no limits in some others, like SEX DISCRIMINATION cases. If an employer is ordered to reinstate or re-engage and does not do so, the tribunal may award a further payment.
Statutory dispute resolution procedures now exist for handling certain employment problems set out by statute. Failure to follow the rules makes the case automatically one of unfair dismissal. The employer must set down in writing the nature of the employee's conduct, capability or other circumstances that may result in dismissal or disciplinary action and send a copy of this statement to the employee stating the basis of the complaint. The employer must invite the employee to a hearing at a reasonable time and place where the issue can be discussed. The employee must take all reasonable steps to attend. After the meeting, the employer must inform the employee about any decision, and offer the employee the right of appeal. If the employee wishes to appeal, he or she must inform the employer. The employer must invite the employee to attend a further hearing to appeal against the employer's decision, and the final decision must be communicated to the employee. Where possible, a more senior manager should attend the appeal hearing. A similar model applies to grievances. A failure to use the procedures may result in an alteration in the amount that would otherwise be ordered by an employment tribunal.