DISMISSAL : FAIR OR UNFAIR?
An employer is able to dismiss an employee at any
time. However, in normal circumstances, the employee
must be given notice either in accordance with his
contract of employment or in accordance with the
statutory minimum periods of notice that apply.
In addition, the employer must behave reasonably
in the manner he dismisses the employee otherwise
he/she will succeed in a claim of unfair dismissal
provided he/she has at least one year's service
with the employer.
In certain circumstances, instant or summary dismissal
is sometimes appropriate i.e.: dismissal without
notice for gross misconduct .
A
DISMISSAL WILL BE FAIR IF THE FOLLOWING CONDITIONS
ARE MET :-
Firstly, the main reason for the dismissal must
be either:-
The employee is unable or unqualified to do the
job possibly because of medical reasons.
The employee's conduct is unacceptable
Redundancy
A legal requirement prevents the employee from
doing the job
Some other substantial reason
Secondly, the employer must act reasonably in
deciding to dismiss rather than taking a lesser
form of disciplinary action. A proper investigation
must take place with an opportunity for the employee
to put his case forward and to take a companion
such as a work colleague or Trade Union representative,
if appropriate.
FROM
6 APRIL 2009 - NEW DISMISSAL PROCEDURES APPLY
From 6th April 2009, the somewhat notorious statutory
disciplinary and dismissal procedures brought
into force by the Employment Act 2002 are rescinded
and effectively everyone reverts back to the previous
position regarding dismissal procedures.
The new ACAS Code will be given centre stage from
6th April and employers will be expected to adhere
to it when dismissing their employees.
Importantly, the Code does not apply to redundancy
dismissals although employers should continue
to properly consult their workforce and arrange
formal meetings prior to effecting redundancies.
The ACAS Code can be viewed
here
CERTAIN
TYPES OF DISMISSAL WILL BE REGARDED AS AUTOMATICALLY
UNFAIR :-
Dismissal for being the member of a trade union
Dismissal for being pregnant or taking maternity
leave
Dismissal related to raising concerns over health
and safety
Seeking to assert an employment right (e.g. right
to minimum wage)
Dismissal related to the transfer of a business
or undertaking
Dismissal for disclosing details in the public
interest
ACT
QUICKLY - ACT NOW
Employees have three months from the date of dismissal
to make a claim of unfair dismissal to the Employment
Tribunals.
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