Unfair dismissal as the name suggests is a dismissal that is unfair, which means a termination without a valid reason and which does not comply with the specific legislation of a country.
In an unfair dismissal, the employee is forced to resign or quit by the employer or the management through various means like assigning him some work that feels demeaning to him or placing him in a degrading work condition.
Meaning of unfair dismissal
In an unfair dismissal, the employee is dismissed from his job in an unreasonable manner that is considered both unjust and harsh. In some cases, an employee can claim to be a victim of unfair dismissal, even if the employer had the right reason only when he has used a wrong procedure for dismissing the employee.
Examples of unfair dismissal
Ramesh has worked in Shyam Trading and Company for more than thirteen years. Last year the company decided to economize and let go of several of its employees as part of downsizing the company. Ramesh applied to The Fair Work Commission within a week for a case of unfair dismissal.
His termination was considered unfair dismissal by the commission because by the law of retrenchment FIFO principle if the company has to retrench its employees, it starts with the last one hired and then goes backward.
As Ramesh was with the company for a long time and some employees were hired after him and were still working in that company, his dismissal was unfair as per the set rules of the FIFO principle.
Understanding unfair dismissal
There are laws as well as rules and regulations in place to offer protection to the workers and employees from unfair dismissal.
It is essential to understand that there is a set procedure that an employee has to follow if he wants to claim unfair dismissal and if it is not followed, then the termination will be considered fair automatically.
The rules that an employee should follow are
- The appointment letter was given to the employee at the time of hiring
- Policies document of the organization
- Standing order of the organization
In some countries like Australia, an employee cannot appeal for unfair dismissal by himself; it has to be by the union, whereas, in some states, an employee can directly claim unfair dismissal.
The employees who consider that they are subjected to unfair dismissal have to apply to the Employment Tribunal or The Fair Work Commission, which decides on such cases, within a period of three months from the day after the date of dismissal.
The employees who have worked in a job for at least a minimum period of six months can apply to the commission on the grounds of unfair dismissal. The employees who are working in small businesses have to be on the job for a minimum period of twelve months to two years of continuous service, and in case there is a change in ownership then the service with the first employer will be countable while calculating the period for the employment.
The employer to defend himself has to
- Prove that he has followed proper procedure
- Prove that the employee has been told about the company rule previously
- Prove that you have not been treated as an exception to the rule or a special case
Before an employee takes the necessary steps to file a claim for unfair dismissal, he must seek legal advice from a solicitor who is considered a specialist in employment and dismissal cases. He has prior knowledge and can offer the best advice in such circumstances. The solicitor will go through every aspect of the situation and consider its strengths and weakness and later advise his client on the chances of success. If the chances of getting compensation are slim to none, it is best to be aware of it from the beginning so that the employee can improvise on his strategy.
Some unfair dismissal cases are resolved via negotiations and others may go to a hearing for Employment Tribunal.
If the case proceeds to a hearing, it is usually heard by a judge sitting alone. Only if the case is considered very complicated for instance, issues like discrimination are involved, then a panel of three is set up. Once the judgment is given, it is the final resolution of the case.
The scope of reconsideration or appeal is minimal and only if the Employment Tribunal misunderstood or misapplied the law. The Employment Appeal Tribunal hears such requests.
It is in rare situations that the Employment Tribunal’s decision is reviewed and only in cases where new evidence has come to light. It is even more unusual for The Employment Appeal Tribunal to change the recent decision. The judgments are a public report, and anyone can find reports of such cases that have already been decided.
If the Employment Tribunal finds the dismissal unfair, then the employer will to either reinstate the employee or pay compensation to him. The claim can also be seen as justice by some and is equally essential to the employee who is fired.
The Employer Tribunal considers every scenario and the practicalities of such arrangements before deciding upon the one it feels is justified
In case, the judge at The Employment Tribunal orders reinstatement of the employee, then it means that the employee will be reinstated and treated as if he was never dismissed from the job.
The Employment Tribunal can also award the employee financial compensation instead of the benefits he might have lost during the period of his unfair dismissal. The tribunal can also restore the employee’s right to other privileges like a pension that he was entitled to as part of his reinstatement.
In case, the judge at The Employment Tribunal orders re-engagement of the employee, then it means that the employee will be re-employed by the employer or another employer that is associated with the company in a position that is similar to the job profile he was dismissed earlier.
The details are specific and are mentioned appropriately in the Employment Tribunal’s order and additional awards along with the awards that are given as part of the re-engagement.
In case the judge at The Employment Tribunal orders compensation to the employee, then it means that the employee will be compensated as per the order of the judge. The compensation can be
- The Basic Award – It is linked to the length of the service and the salary. In some cases, a week’s pay and in others one and a half weeks pay is applied for each year of continuous employment to a maximum number of years that should not exceed twenty years.
- The Compensatory Award – It is up to the Employment Tribunal to figure out the compensatory amount it considers just and fair. It is generally capped a maximum of 83,682 pounds or one year’s pay.
A dismissal is considered unfair when the employer terminates the contract of his employee or any of the following reasons-
1. Automatic unfair dismissal
If the employer dismisses his employee for exercising his legal employment rights and the statutory employment rights of the employee include
- An itemized pay statement
- Adoption leave
- Minimum notice period
- Maternity or paternity leave
- A written statement about the particulars of the employment
- Guaranteed pay in case, work is not available for an employee
- No discrimination because of age, political opinion, religion, sexual orientation, disability, race and gender
- The right to flexible working hours and arrangement
- Time for dependents
- Protection against wage deduction via unlawful means
- Time for parental leave
- Remuneration if suspended on medical grounds
- Time for antenatal care
- Refusing to do any betting work on a Sunday
- Time for public duties like jury service, community service or military service
- Disclosing something of general interest
- Time off for training or studying
2. Dismissal because of business transfer
If the business is transferred to another company, then the employee is protected under the clause – Transfer of Undertakings Protections. If he is dismissed by either the old or the new employer because of transfer or a related reason the dismissal is considered unfair until it can be proved that it is for organizational, technical or economic purposes.
3. Dismissal because of tax credits
An employee can claim unfair dismissal if
- He is entitled to working tax credits
- He tried to enforce his rights to receive working tax credits
4. Dismissal for taking action on safety and health grounds
The termination of an employee is considered unfair dismissal if he is dismissed for
- Carrying out activities in his role as a health and safety to minimize safety and health risks
- Bringing a concern about health and safety to the employer’s notice
- Leaving or trying to leave the workplace if there is an imminent and unavoidable danger.
- Taking steps to protect others and yourself from imminent danger in the workplace
5. Dismissal because of working hours
An employee has the right to rest breaks, paid leave and average working hours every week under working time rights and his termination is unfair dismissal if he refuses to
- Break his working time rights even when the employer asks him to work
- Sign an agreement that has an impact on his working time rights
- Give up one of his working time rights
If an employee is dismissed for redundancy then it is considered unfair dismissal
7. Dismissal because of fixed-term or part-time work
An employee who is a full-time permanent worker cannot be favored over a fixed-term or part-term worker. It is unfair dismissal if
- If an employee is a part-timer
- He complains about being treated less favorably
- The employee was involved in a complaint raised by another employee
8. Dismissal because of grievance or disciplinary hearing
If an employee has exercised his rights and has attended a grievance or disciplinary hearing then the termination is known as unfair dismissal
An employee cannot be dismissed for
- Insisting on his rights to be paid NLW or National Living Wage or NMW or The National Minimum Wage
- Reporting the employer for not paying NLW or NMW
10. Dismissal because of a trade union
If an employee is dismissed because of reasons like subscription funds or trade union membership then his dismissal is unfair if he is dismissed for
- Refusing to give up his rights under the collective agreement
- Refusing to pay union membership
- Deciding to join or not to join in trade union activities
- Either showing or not showing support to any aspect of trade union
- Objecting a deduction of excessive union subscriptions from his pay
11. Dismissal because of maternity or pregnancy
In the case of pregnancy and maternity, the termination is considered unfair dismissal in the following circumstances
- During the ordinary course of maternity leave or if it extends to an additional period
- For any reason that can be regarded as connected with the pregnancy
- Safety or health issues during pregnancy
- For keeping in touch or not keeping in touch with your employer during maternity leave
- If the maternity leave was extended and your employer did not tell you about the duration of the maternity leave
- If the employer gave you less than twenty-eight days of maternity leave and it was impossible to leave so small baby at home