What is Unfair Dismissal?

Whenever someone loses their job, their dismissal must be fair and reasonable, and if it is not, an employee can take his employer to an industrial tribunal. In all cases of dismissal, the burden of proof falls on the employer. This means that the employer must prove that on a balance of probabilities, the dismissal was fair.

Cases where the dismissal is fair include the following:

• The conduct of the employee is improper and has undermined the trust of the employer E.g. Breach of contract, a criminal offence.
• The employee is not capable of doing the job or is unqualified for the job
• The employee is prevented from doing the job by legal reasons
• The employee has been made redundant (see redundancy)
• When the employer has given his reasons for the dismissal, the tribunal will decide whether or not it was unfair. Often they will take into account the size of the company and its resources.

When To Dismiss

When dismissing an employee, an employer must make sure to conduct a proper investigation of the facts, and the employee should be allowed to give reasons for his behaviour. The personal circumstances of the employee should also be taken into account.

Wherever possible, alternative disciplinary measures should be attempted, and the employee should be given fair warning before he is dismissed.

Incompetence

A single act of incompetence is not sufficient for fair dismissal, unless the employee is an important person, whose incompetence could have endangered life, or has undermined health and safety.

The incompetence should be brought to the employees' attention, and a remedy attempted. If the employee continues to exhibit incompetent behaviour, this may be a ground for dismissal on the ground that the employee is incapable of doing the job.

Misconduct

Minor misconduct should be dealt with by a formal warning to the employee, and continued misconduct may be sufficient for the employee to be dismissed. Serious cases of misconduct may warrant dismissal on the first offence.

Misconduct can include such things as unprofessional behaviour towards customers, disregard for company rules, disregard for health and safety, 'stirring up' discontent amongst other employees and antisocial behaviour.

Criminal Offense

Criminal offences which involve imprisonment will certainly see dismissal, as the employee will be unable to fulfil his obligations under his contract. Lesser criminal offences, involving such things as dishonesty and theft may also warrant dismissal.

The nature of the offence and the job also play an important part. For example, a doctor may be dismissed for drugs abuse, but for a banker, this would be an unfair dismissal, as it does not reflect on his job. If however he had been accused of stealing to fund this habit, then the bank which employs him may very well dismiss him.

Remedies For Unfair Dismissal

Usually, if an employee has been unfairly dismissed, the court will order his employer to reinstate him. This means that he will be given back his old job, along with all his privileges, and any pay he has lost.

Compensation for unfair dismissal comes in two parts:

A basic award is given, calculated on the employees weekly pay, service to the company and age.
An additional award may also be given by the court if they feel it necessary. This award must not exceed £51,700, except where the employee was unfairly dismissed due to racial or sexual discrimination. In these cases, the compensation which may be awarded is unlimited.