The Concept of Unfair Dismissal - Essay Example

Employment Law UK Advise Abe as to any claim he may reasonably try to bring against the company According to the Employment Rights Act 1996 c18, unfair dismissal1 is defined as termination of an employee’s contract by the employer in violation of the requirements of the Act. According to this Act, the employees have a right not be dismissed unjustly. Termination of the contract must be just hence the grounds for dismissal given by the employer under section 98(2) in this case should relate to the conduct of the employee2. Cathy the manager on the grounds of misconduct (stealing from the company) has dismissed Abe without conducting a thorough investigation3. Besides, the fact that Bruce is a friend motivated Cathy to dismiss Abe without carrying out a fair investigation based on the assumption that Bruce has worked for the company for a long time hence he cannot be the guilty one. Therefore, Cathy has a burden to prove the allegation made against Abe. Distrust of a possible misconduct on crime is an instance where the employer has the burden to provide indisputable evidence that an employee is guilty even if the conduct violates the disciplinary code. In John Lewis v Coyne4, the manner in which the store handled the disciplinary issues was placed under scrutiny by the EAT over the concerns of Coyne using the corporation telephone. It is after investigation has been conducted that Abe has been found not guilty while Bruce was the actual culprit. Therefore, Abe has a right to reinstatement, re-engagement or even compensation5. Compensation to Abe comprises of a basic award because this was a mistaken identity, which led to unfair dismissal Cathy might be ordered to pay Abe up to £76,700. Moreover, if Abe decides to add allegation of a breach of contract, Cathy might be ordered to pay an extra £25,000, which takes the probable compensation way up to £101,700. In addition, since Cathy dismissed Abe unfairly it is possible for Abe to file a claim for loss in earnings and damage to image (defamation). In Addis v, Gramophone Co Ltd6 Mr Addis was unfairly and harshly discharged from his position as the manager of the defendant in Calcutta. During trial, he was given damages that exceeded the actual figure of his salary for the period he was given a notice as stipulated by law. The case in general was considered as having been ruled that the employee had no ability to be compensated for damages in connection to the manner in which the unfair discharge of duties occurred, for ruined image and feelings or for loss he may experience from the truth that by having been dismissed, it makes it hard for him to get a new job7. Especially, Addis is universally implicit to have made a decision that any form of loss incurred by the negative impact on the chances of him getting an alternative job must not be included from the evaluation of damages for unfair dismissal. In Malik v Bank of Credit & Commerce International8, The observation of the judge were put in universal terms where he was in open disagreement with the proposition by Lord Coleridge in Maw v. Jones 9, to the fact that evaluation of damages should take into consideration the bigger challenge which the employee dismissed with a disgrace of reputation might encounter to get another job. Legal Advice to Donald and Esme following their dismissals Employees hold the right to a realistic notice prior to having their employment contract ended under section 86. Donald and Esme have worked for Cosham centre for 101 weeks and 100 weeks respectively. It is evident that the employer has complied with this section of the employment law of the United Kingdom. This means that Donald and Esme have not yet attained a two-year working period to be entitled for redundancy claims. However, the employer has an obligation to inform the employees of the reasons or grounds for their dismissal. In this scenario, Donald and Esme were only informed of their pending dismissal even though they were given ample notice of dismissal. In addition, under s.152 of the Trade Union and Labour Relations Act 1992 an employee will be regarded as unfairly dismissed on reasons associated with union activities and membership10. The termination of a staff will be considered as unjust in case the grounds for termination was based on the fact that the employee had been mentioned to be part of an autonomous trade union or the employee had been involved in part in the activities of an autonomous trade union at any given time11. Therefore, Esme can lodge a claim of unfair dismissal on the grounds of being an active member of a trade union. In Dundon v GPT Ltd12, the employment tribunal held that it was involuntarily unjust to decide on a trade union representative for redundancy grounds just because the Dundon was spending excess time on his union activities. This amounted to unjust decision by grounds of involvement in activities of trade unions. Although the employer was not inspired by mischievousness or intentional intend to get rid of the union representative13 this amount to unfair dismissal. The employment tribunal also overturned the assessment by industrial tribunal that the representative was three quarters largely to blame for his termination and substituted with a figure of about 33%. The employer has a burden to give reasons for their dismissal and if the reasons are based on the ground of redundancy, the employer has an obligation to state or prove the redundancy of Donald and Esme. If the selection for redundancy on basis associated with union membership or activities14. Esme has an opportunity to claim for the least basic award for unjust dismissal of £ 5,300. If Donald and Esme can provide proof or evidence that there are other competing grounds then the burden of proof goes to the employer to provide evidence or proof that their claimed ground for dismissal was the major one. If the employees have finished one year of serving the company then their position or their fate is guided by the decision of the Court of Appeal in Maund v Penwith District Council15, a court case where the tribunal by Robjant was particularly pointed out by Miss Downing in the closing written submission. In the case, after the dismissal by Maund, the council claimed that the grounds for dismissal for Maund were redundancy. On the other hand, he argued that the main ground for his dismissal was his involvement in trade union activities, which was a reason that was not admissible under section 152 TULRCA16. In cases where the issue under contention is merely one unjust dismissal under section 98 ERA the situation is clear-cut17. It is the duty of the employer to exhibit a probable just ground for termination, in case he does not do so the dismissal will not be fair18. If the employer passes the reason, the burden to the tribunal will be to decide if the dismissal for that particular reason was unfair or fair by making use of section 98(4). At this level, the hurdle of proving is unbiased as in Boys and Girls Welfare Society v McDonald19. Advise to employers and employees of any claims or liabilities in relation to the transfer and closure of Keep Fit& Well Co Ltd Law permits an employer to dismiss employees or staffs for reasons based on operational costs requirement, technological20, economic, and structural or other related reasons. For instance, the employer might claim the company is at loss due to economic reasons hence some positions are rendered redundant21. In this case, Keep Fit& Well Co Ltd is restructuring the company by merging with Fitness Fit at Fareham centre. Therefore, the company does not need about 35 employees since their positions are redundant. However, the company has a burden to prove that the 35 individuals from one division were all redundant in their duties and the rest were productive22. Before the employees are dismissed, the employer should consult with them and they must be given a chance to make propositions on any of the issues concerning their dismissal. Where an operation or business activities are transferred from one company to another or from one employer another employer, this does not provide proof that the 35 employees were all redundant. The employee is protected by Transfer of Undertakings (Protection of Employment) laws also known as TUPE23. Nevertheless, there are conditions where an employee will get redundant due to the merger or takeover of a business. This might take place before the transfer occurs or after the transfer has occurred. In this case, the positions have been rendered redundant before the transfer has taken place24. Therefore the 35 employees have a right to be given reasons showing that they have been legally redundant because there is no more need for the duty or work they have been doing in the company. Besides, the employer should prove that the takeover itself was not the sole reason for their redundancy25. In addition, an employee must be offered a due notice of dismissal according to the length of service served26. In this case, the employees who are dismissed based on the one-week notice and they are well aware that they have worked for the company for more than a year can file claims for unfair dismissal since their notice of dismissal must be given in accordance with the length of period served the employer27. Most importantly, the EAT made a consideration on redundancy and came to a conclusion that it was not authentic that staffs had been let off for issues related with performance of the company28. Under the disguise of redundancy, EAT placed into account the case Panisi JVC Europe Limited29 where it was ruled, “it has been made abundantly clear by that legislation (unfair dismissals Act 1977) that, redundancy, while it is a dismissal, is not unfair. A dismissal, however can be disguised as a redundancy; that is not lawful….Redundancy cannot, therefore be used as a cloak for weeding out those employees who are regarded as less competent than others…if that is the reason for letting an employee go, then it is not a redundancy but a dismissal”. As a result, EAT gave an award of €200,000 to the employee compensation30. This ruling outlines the significance of a company or employer to ensure that any claim of redundancy or discharge of duties is first and foremost authentic and secondly be executed by use of right procedures that can be found to see to it that the end results are not considered unjust and that excess award is not made aligned with them3132. Bibliography Books Arup, Christopher. Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships. [Annandale, NSW: Federation Press, 2006] Barclay, Liz. UK Law and Your Rights for Dummies. [Chichester: John Wiley & Sons, Ltd., 2006] . Barnard, Catharine, and Bob Hepple. The Future of Labour Law: Liber Amicorum Bob Hepple. [Oxford [u.a.]: Hart, 2004.] Benny, Richard, Malcolm Sargeant, and Michael Jefferson. Employment Law, 2012 and 2013. [Oxford: Oxford University Press, 2012.] Collins, Hugh, K. D. Ewing, and Aileen McColgan. Labour Law: Text and Materials. 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Press, 2001] Taylor, Stephen, and Astra Emir. Employment Law: An Introduction. [Oxford: Oxford University Press, 2012] Workplace Law Handbook 2011: Employment Law and Human Resources Handbook. [Cambridge: Workplace Law Group, 2010] Legal Cases Panisi JVC Europe Limited [2011] 125 CA Boys and Girls Welfare Society v McDonald [1996] IRLR 129 Maund v Penwith District Council [1984] IRLR 24 Dundon v Gpt Ltd [1995] IRLR 403 EAT Maw v. Jones [1890]25 Q.B.D. 107, 108 Addis v Gramophone Co Ltd [1909] AC 488 John Lewis v Coyne, [2001], IRLR 139 Malik v Bank of Credit & Commerce International SA [1997] ICR 606 Acts of Parliament Trade Union and Labour Relations (Consolidation) Act 1992 Employment Appeal Tribunal Act 2005 Unfair Dismissals Act 1977 Employment Rights Act 1996 Read More