Unfair dismissal in the United Kingdom is the part of UK labour law that requires fair, just and reasonable treatment by employers in cases where a person's job could be terminated.
Exclusive jurisdiction to hear complaints and give remedies was conferred upon the newly created National Industrial Relations Court.
[11] The reason might not be as the employer said, as they might have been wrong on facts or law, short of evidence, or have been trying to be kind to the employee by dressing up capability as redundancy.
The qualifications ground will be viewed sceptically by tribunals, as if an employee was good enough to employ for two years to give him unfair dismissal rights, a claim that he is suddenly under-qualified may hint at there being another genuine reason, which would make the dismissal unfair on the grounds that the employee never had the chance to respond to the true reason.
[33] If an illness is a disability (because it hinders the employee in professional life) the employer has to make reasonable adjustments, which might mean sick pay, redistributing work, giving him a vacancy, being flexible in hours, etc.
[40] Employers can undermine their claim that the crime made the employee unsuitable by delaying in acting or allowing him to work his notice.
[41] Dishonesty counts more if the job requires honesty, e.g. involves handling cash, third partys' goods, acting as security guard.
Tribunals may be dubious of dismissals of long serving employees with a clean HR record on grounds of some minor or irrelevant offence years ago.
The employer may simply be able to say that a court has decided there was sufficient probability of guilt to lock him up and this informed its investigation, justifying dismissal.
[44] To dismiss several staff for incompetence because the employer does not know which one is the weakest will usually look arbitrary and could easily show lack of an adequate investigation.
It could easily be fair though if safety is at risk meaning damage could be done that cannot be put right with money, for example, somebody forgot to bolt a jumbo jet's windscreen back in place and a pilot is sucked out mid-flight.
[51] If the employer suddenly purports to add a draconian new rule that is not in staff contracts, it may face claims of constructive dismissal.
[54] Being under the influence of drugs can be grounds, especially if there is a published policy against it, but an odd case of being drunk will not be enough unless it happened to be accompanied by violence or customer complaint.
The employee may defeat the allegation by showing that he received conflicting instructions, or if there had been a breach of health and safety he could become a whistleblower making it next to impossible to dismiss him without a settlement.
For capability or conduct, the employer does not have to prove on the balance of probabilities that the employee is incompetent or badly behaved, merely that based on sufficient evidence[61] it honestly believes on reasonable grounds that he is.
Employers may want to save face for both parties where the real ground is conduct[70] that was not addressed in time, capability that is difficult to prove, pregnancy[71] or the hope simply that somebody who does not figure in future plans will grab an enhanced redundancy payment and run.
Any attempt to make it difficult to take holiday or jobseeking opportunities at that vulnerable time may not look like a reasonable employer.
The consultation must start when the employer decides[74] or proposes[75] redundancy - any delay could entitle the employee to compensation for loss of jobseeking time.
[93] Common law examples are imminent defection to competitor,[94] unreasonable refusal to agree a contract change,[95] going AWOL,[96] repeated complaints of constructive dismissal without resignation,[97] damaging breakdown in relations caused by the employee,[98] threats to resign followed by ambiguous absence,[99] imprisonment,[100] expiry of fixed term[101] and pressure from a customer or supplier.
Statutory categories are employees drafted in to cover for pregnancy or sickness,[104] and TUPE economic, technical or organisational changes (when a firm is taken over).
did not mean that an omission expressly to refer to the injustice caused to an employee ... was an error in law, provided that it was apparent that the tribunal had taken that factor into account.
[114] A classic error is not giving the employee warnings,[115] disciplinary rules,[116] details of the allegations,[117] the right of appeal[118] or to be accompanied at a dismissal hearing,[119] alternative employment options before termination subject to the group's size,[120] or the chance to improve.
Note that the 'Polkey deduction' principle applies: just because an employee has successfully claimed unfair dismissal does NOT mean that they will receive the full Compensatory award.
[136] Mainly though, the compensatory award depends on what the employee earned before it all went wrong, and how long they will take to get back similarly paid work.
Factoring in the smaller basic award, the nightmare scenario in a tribunal for the employer is therefore ruining a 41-year-old high flier's career after they have been with them for 20 years.
"Big money" cases tend to be restricted to discrimination, where the tribunal's unfair dismissal cap is lifted, or breach of contract or psychiatric injury, where there is no limit to what can be claimed in court.
So a worst-case scenario overall for the employer is not just ruining a high flier's career, but a man doing so by bullying a woman and giving her a nervous breakdown.
However, the employer may worry that compromising undermines the decision to dismiss and thus the authority of management, or that it would create a precedent for everyone who leaves to demand "a bit extra to go quietly".
By offering an apology, a good reference, tax-free lump sum and avoidance of the time and cost and risk of losing, the employer may persuade the employee to make a similarly economic decision to drop the claim, sign a compromise agreement and clear his desk.
A Settlement Agreement is enforceable, but the employer is advised to have a "clawback" clause to allow recovery of any termination sums paid should evidence of misdeeds by the employee later arise.