Commercial Businesses - Unfair dismissal and constructive unfair dismissal claims

Tags: Unfair Dismissal, TUPE, Misconduct, Redundancy, Capability, Business re-organisation, Service Requirement

Unfair dismissal claims are the most frequent type of claims brought in the Employment Tribunal. 

There are two types of claims, the first being where an employer dismisses the employee and a claim is lodged as a result of the dismissal, and the second being where an employee resigns as a result of the employer committing a serious breach of their express contract or the implied term of trust and confidence (constructive unfair dismissal). 

Is there a qualifying service requirement for bringing an unfair dismissal claim?

To proceed with a claim for unfair dismissal, the claimant must:

  1. Be an employee and not an independent contractor or self-employed and 
  2. Have  been employed by you for the minimum qualifying period of service (though this requirement is subject to exceptions):
    • If employment began before 6 April 2012, they will need to have one years’ service.
    • If employment began after 6 April 2012, they will need to have two years’ service.

How do I avoid unfair dismissal claims? 

To avoid an unfair dismissal claim, firstly you should ensure that you follow the ACAS Code of Conduct when undertaking disciplinary proceedings; this involves ensuring: 

  1. Allegations are investigated;
  2. A meeting takes place where the employee is given the opportunity to put their side across/provide further information and informed of their right to be accompanied;
  3. The outcome of the meeting is sent to the employee in writing and 
  4. The employee is given the opportunity to appeal any decision. 

Failure of the above process will assist employees in succeeding in an unfair dismissal claim with the possibility of a 25% uplift in compensation. 

The second stage is to ensure that you have a fair reason for the dismissal; this must be one of the following: 

  1. Misconduct, e.g. discrimination of another employee; 
  2. Redundancy;
  3. Business re-organisation;  
  4. Employees capability to perform the job; 
  5. Employees breaching their employment contract i.e. breach of confidentiality. 

Any dismissal must be reasonable given the circumstances surrounding the allegations. The tribunal deal with facts on a case by case basis. 

How do I avoid a constructive unfair dismissal claim? 

You should ensure that you follow the ACAS Code of Conduct when undertaking grievance proceedings; this involves ensuring: 

  1. The complaints are investigated by an independent member of management;
  2. A meeting takes place where the employee is given the opportunity to provide further information and informed of their right to be accompanied;
  3. The outcome of the meeting is sent to the employee in writing and 
  4. The employee is given the opportunity to appeal any decision. 

Failure of the above process will enable the employee to ask for a 25% uplift in compensation.  

If you fail to carry out a fair and proper investigation into a grievance the employee may resign and claim constructive unfair dismissal for breach of the implied duty of trust and confidence. 

TUPE 

Further following a transfer of business or service, all transferred employees must retain their terms and conditions of employment. If this is not honoured by the new employer, the employee may resign and claim unfair dismissal. 

If the employer’s failure is found to be connected to the transfer and they do not have an economic, technical or organisational reason for the change, the dismissal could be held to be automatically unfair.

Remedies

Employees who are successful in their claim for unfair dismissal can request reinstatement (returning to their old job) or compensation, though they will have to make every attempt to find alternative employment. 

Join myHR today by contacting us on 0113 3504030 or through our enquiry form and let us help you stay out of the Employment Tribunal!

Subscribe to our mailing list and receive monthly updates of the articles that we publish.

* indicates required

LATEST LEGAL UPDATES:

  • Gig Economy – Royal Mail Group Facing legal action from drivers

    Tags: National Minimum Wage, Employment Tribunal, Employment Appeal Tribunal, Gig Economy, Worker, Supreme Court, Self-Employed, Royal Mail, Drivers, DPD

    The trend towards gig economy drivers and contractors demanding employment status rights will continue throughout 2018. This should come as no surprise when you consider the recent report published by parliamentary committees which determined nearly 1.6 million people work for gig-economy giants and find relatively little protection provided under current employment law due to their status. 

    We previously reported on the Uber drivers ongoing battle in August 2016, and the EAT decision in November 2017 if you haven’t been keeping up with our gig economy posts. 

    More recently, in December 2017, couriers at Parcelforce Worldwide commenced legal action against its parent group, Royal Mail Group Ltd, over failure to pay drivers the national minimum wage and holiday pay.& … more

    

Reviews and Ratings for solicitor Samira Cakali, Leeds