The most significant right conferred on employees by the Employment Rights Act 2012 is the right not to be unfairly dismissed.
The concept of unfair dismissal was introduced in England in 1971 and the claim is based on the ground that the employee has been dismissed for reasons and in a manner suggesting that the circumstances did not justify his dismissal.
To maintain a successful action for unfair dismissal, it must be established that:
(a) the employee has been “dismissed”;
(b) the employee qualifies for a right to claim unfair dismissal;
(c) the employer did not have a “fair reason” for the dismissal; or
(d) if the employer did have a fair reason, that reason was not implemented fairly.
To qualify for the right to unfair dismissal, the employee must have been continuously employed for a period of one year. The employee must also make his complaint to the tribunal within three months of the effective date of his termination. However, where the tribunal considers that it was not reasonably practical to make the complaint before the end of the three months, it may extend the period for such time as it considers reasonable.
The employee must prove that he or she has been dismissed but, as with common law rights, a resignation may be deemed a dismissal if the person resigned in the face of a serious breach by the employer. This is the same thing as wrongful repudiation but is called a “constructive dismissal” in this setting.
Determining fairness
This involves a two-stage process. One must ask whether:
(1) The dismissal was for a fair reason.
There are only five acceptable fair reasons – capability or qualifications, conduct, redundancy, statutory illegality and “some other substantial reason”. Dismissal for any other reason is unfair. Particularly inadmissible reasons include some forms of discrimination, dismissal because of pregnancy, and dismissal because of trade union membership or refusal to belong to a trade union.
(2) The dismissal was fair in all the circumstances.
This means that the decision to dismiss must fall within the range of reasonable responses open to a reasonable employer, and that a fair and proper procedure has been followed by the employer.
Some attempt is made in the act to assist with the decision on whether a dismissal was fair or unfair: Section 29(4) says in part:
“The question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether:
(a) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and
(b) the employer compiled with the rules set out in Part A of the Fourth Schedule of the act.
These rules provide as follows:
“(a) disciplinary action must be applied progressively in relation to a breach of discipline;
(b) except in the case of gross misconduct, an employee should not be dismissed for his first breach or discipline;
(c) in relation to breach of discipline not amounting to gross misconduct;
(i) an employee should be warned and given a reasonable opportunity to make correction; and
(ii) oral or written warnings or both should be utilised before stronger forms of disciplinary action are implemented; and
(d) where a period of 12 months or more elapses after a written warning is given, any breach of discipline committed before the commencement of that period shall be treated as expunged from the record of the employee.”
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your emails to cnmcc@caribsurf.com.
