Unfair Dismissal in Employment

Unfair Dismissal in EmploymentUnfair Dismissal.In an action for unfair loss, it is for the employer to prove that there were grounds for dismissal, and that in the circumstances the dismissal is fair.Five potentially fair reasons for dismissal have been set out at Section 98 of the Employment Rights Act 1986. These are as sweep up-Lack of appropriate qualifications or capability This provide only be fair if the missing qualification is essential to the proper performance of the job. Interestingly, in Litster v Thom Sons Ltd (1975) an employee was found to be unfairly dismissed after dismissal for failing to obtain a HGV licence, which had been stipulated as a condition of employment. It was held that the employee could serve the employer in former(a) ways.Negligence may unloosen dismissal. By way of example, in Taylor v Alidair hold in, Mr Taylor was a trained pilot, who was dismissed for causing damage to a plane (and a fright to its passengers) after a bad landing. The court of appeal held that the degree of professional skill required in that case was so high, and the consequences of from that high regulation was so serious that one failure to perform in accordance with those standards was enough to justify the dismissal.the employees conductWhether the conduct justifies dismissal will be a question of fact in each case. Lying, fighting, theft, or dangerous behaviour would undoubtedly justify a dismissal. Other scenarios such as being rude, or failing to cooperate with management, or drinking on duty, may also be fairly dismissed.Conduct in an employees spare time may also justify dismissal if it reflects adversely on the employees suitability for a job such as theft. Sleeping with the wife of the employer outside office hours was held to justify dismissal in Whitlow v Alkanet Construction (1987)However, if the lack of capability is caused through the fault of the employer, for example, through its failing to provide training or supervision, the dis missal would be unfair.the employee was redundantAn employer must show that the employee has been fairly selected. The onus would fall to the employer to show that the reason for Gillians selection was fair. The EAT laid batch guidelines for good industrial practice in redundancies in Williams v Compare Maxam Limited. This requires consideration as to whether objective selection criteria were chosen and fairly applied whether the surmise of transfer to other work was investigated whether employees were warned and consulted and whether any union was consulted.the continuance of employment would result in illegalityany other substantial reason.In Gorfin v infelicitous Gentlefolks Aid Association (1973), a personality clash was sufficient to render dismissal fair in order to restore harmony to the workplace, where all other reasonable steps had been taken to resolve the situation. Economic reasons may also fall within this heading, if an employer could show that these were based on good commercial practice. This would include for example removing overtime when defending a claim for constructive dismissal.Whether the dismissal is fair is subject to the general reasonableness test, as set out at Section 90(4) Employment Rights Act 1996. This provides that fairness will be judged by deciding whether in all the circumstances the employer acted reasonably determined according to rectitude and the merits of the case. Merely giving the appropriate contractual notice, and showing that a S98 reason applies will not suffice. The employer must show that he dealt with the problem in a reasonable way in the particular circumstances. It must be shown that dismissal is a last resort, and that the dismissal has not come out of the blue. It is all important(p) to ensure that adequate warnings are fall apartn, failing which an otherwise fair dismissal will be rendered unfair.There are certain circumstances where the law is ardent to protect employees who are vulnerable to victimisation, by providing that certain circumstances will automatically give rise to a claim for unfair dismissal disregardless as to whether an employee has been employed for the one year qualifying period. These situations include a claim for dismissal in connection with the exercise of maternity rights dismissal relating to blab out blowing accompanying workers at a disciplinary hearing trade union membership or activity or for taking legal action against an employer to follow out statutory rights.For a dismissal to be fair, an employer must also show that it followed a fair procedure. Section 34 of the Employment Act 2002 inserted a clean Section 98A into the Employment Rights Act 1996. This sets down the minimum procedural requirements and provides that a breach by the employer of a statutory procedure on dismissal will mean that the dismissal is automatically unfair. (This reverses the rule in Polkey v Dayton Services Limited.) The detail of how the procedures would op erate in practice was set out in supplementary legislation, the Employment Act 2002 (Dispute Resolution) Regulations 2004.The basic standards are defined in Schedule 2 as1) The employer must set outline writing the employees alleged conduct, or characteristics, or other circumstances which lead him to contemplate dismissal or disciplinary action. 2) An invitation must be given to the employee to attend a meeting to debate the matter, which must take place before action is taken. 3) The employee must have a reasonable opportunity to consider his response. 4) The employer must inform the employee of his decision. 5) The employer must give a right of appeal, together with an invitation to attend a further meeting for this purpose.If an employee is found to have breached this procedure, the dismissal is automatically unfair. In addition, there will be an extra award of four weeks pay, if a tribunal finds that not to be unjust to the employer.BibliographyA Practical Approach to Employm ent Law John Bowers, seventh Edition, Oxford University Press 2005 Harvey on Industrial Relations and Employment Law, Butterworths Law for Business Students, Alix Adams, 3rd Edition, Pearson Longman 2003 Employment Act 2002 Employment Act 2002 (Dispute Resolution) Regulations 2004. Employment Rights Act 1996 (as amend by the Employment Relations Act 1999) Trades Union and Labour Relations (Consolidation) Act 1992 Davison v Kent Meters (1975) Gorfin v Distressed Gentlefolks Aid Association (1973), Litster v Thom Sons Ltd (1975) Moore v C A Modes (1981) Polkey v Dayton Services Limited 1988 ICR 142 Taylor v Alidair Limited 1978 IRLR 82 Whitlow v Alkanet Construction (1987) Williams v Compare Maxam Limited 1982 IRLR 83