For dismissal to be proven to an employment tribunal there are three requirements that must be met to have a successful claim.
Firstly – the employee must be dismissed by the employer.
Secondly – What was the reason for dismissal? The employer has the burden of proof in establishing a reason.
Thirdly – The employment tribunal will consider whether it was Fair Pursuant under Section 98 (4) Employment Rights act 1996.
Only employees employed under a contract of service may bring a claim of unfair dismissal under Section 230 Employment rights Act 1996, this includes apprentices. Those who are employed after 6th April 2012 then two years of continuous employment will be necessary however for those employed before this date then there will be no need for years of continuous employment.
Dismissal by an employer can take effect summarily or with notice given. Once notice is given and accepted by the employee it cannot usually be rescinded by the employer. This was stated in the case of Riordan v War Office . The burden of proof is on the employee but in most cases there will not be a dispute on this fact. Other instances are included for example where there is pressure on the employee to resign can also constitute unfair dismissal.
The tribunal in establishing unfair dismissal will employ a two stage test under Section 98 Employment Rights Act 1996. First the employer must establish the reason for dismissal under this section. There are five statutory reasons for dismissal which will not be unfair.
1. Employees capabilities and qualifications for doing the work that they are employed to do
2. Reasons relating to the conduct of the employee
3. The employee is redundant
4. The employee could not continue to work in the position they held because it would contravene a duty or restriction imposed by an enactment
5. Some other substantial reason for dismissal such as to justify the dismissal of an employee holding the position which the employee held.
If an employer cannot establish a reason within the valid ones above then the dismissal will be unfair, a reason for dismissal is a set of facts known to the employer or the beliefs held which caused them to dismiss the employee: Abernethy v Mott .
Section 98 (4) sets out the basis of fairness to be assessed against. It states fairness depends on the circumstances whether he acted reasonably in dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case.
When a tribunal decides the fairness of a dismissal they can take in to account all of the circumstances including the size and resources of the employer.
If after all this The Tribunal decides that there has been Unfair Dismissal you will be awarded compensation. This will be made up of two awards, Basic Award and Compensatory Awards.Â
Basic Award is a fixed sum of money worked out by a statutory calculation. The amount is worked out by the amount of time you have been in that job, the age at the time of dismissal and the gross weekly pay you received. For example, if you were 30 when dismissed and have worked at the job for 10 years earning Â£300 a week then the statutory calculation will award the victim Â£2700. This calculation is the same as the calculation for redundancy pay.
Additionally compensatory awards may be given. This is designed to reimburse the employee for loss of income and other benefits. The employee is under a duty to mitigate their losses by looking for other work however The Tribunal will award the employee for recurring losses suffered and other benefits lost but only up to the maximum of Â£74,200.
A tribunal can also reduce the award given usually if the employee has some blameworthy conduct which contributed to their dismissal or where it is just and equitable not to award full losse