employment standards act maternity
What is Unfair Dismissal
Unfair dismissal is the termination of employment for a reason or via a process that is deemed to be in breach of the requirements of the Employment Rights Act 1996. It should not be confused with “wrongful dismissal” – the termination of employment in breach of an employee’s contract of employment.
Employees that have a year of service at the date of dismissal – or have been dismissed without notice within a week of having a year’s service – can only be dismissed for a fair reason and via a fair procedure. Fair reasons for dismissal include those related to an employee’s conduct, capability and qualifications, as well as cases in which the employee was redundant or reached the normal age of retirement – providing fair procedures were followed. Fair reasons to dismiss an employee on grounds of conduct include theft, bribery, abusive behaviour, sharing confidential information, being constantly late of absent and being intoxicated by alcohol or other drugs at work. Other reasons to fairly dismiss an employee include them having an unsuitable appearance or acting inappropriately at work, or acting in a manner outside of working hours that affects their work. It is also deemed fair to dismiss an employee in cases where statutory duties or restrictions prohibit their employment being continued.
Unfair dismissals include cases wherein the employer does not have a fair reason for dismissing the employee, or does not follow the correct dismissal procedure; including redundancy, retirement and dismissal relating to working time. Employer’s must have fair procedures in place for selecting which employees are made redundant and must follow this procedure in order for a redundancy to be fair. Fair retirement must also be in accordance with the employer’s normal retirement age and must involve the employer giving proper notice to the employee of their retirement. An employer cannot dismiss an employee for requesting to work beyond the employer’s normal retirement age. It is also deemed unfair to dismiss an employee for refusing to break their working time rights, carrying out health and safety activities or leaving due to imminent danger in the workplace.
There are also several reasons for dismissal that are deemed “automatically unfair”, including being dismissed on grounds of age, race or gender or for attempting to exercise a statutory employment right. Statutory employment rights include the right to maternity, paternity or adoption leave, time off for antenatal care, time off for dependants and guaranteed pay when work is not available, as well as the right to request flexible working arrangements or refuse to do shop or betting work on a Sunday. It is also automatically unfair for an employee to be dismissed due to a transfer of ownership of a company, if the employee is protecting by the Transfer of Undertakings protections.
In order to claim unfair dismissal the employee must lodge a complaint using an ET1 form and bring the case before an Employment Tribunal within three months less one day of the last day of employment. The Employment Tribunal will then judge whether the employer’s decision to dismiss the employee was a reasonable response, by the standard of a “band of reasonable responses” of reasonable employers. The employee can claim alone or choose to be represented by employment solicitors – the latter is the more highly recommended course of action.
About the Author
Julia Kemp is an expert in employment law, specialising in unfair dismissal. For more information, please visit http://employmentlawhelp.co.uk/
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