Does Unfair Dismissal Provide Adequate Redress
We are going to give an overview of unfair dismissal, its definition and how it provide redress and in what circumstances.
Definition : Unfair dismissal is the termination of a contract of employment for unfair or inadequate reasons, with or without notice in the case of gross misconduct. (www.netlawman.co.uk)
Unlike "wrongful dismissal", which is an old common law concept, "unfair dismissal" is entirely a statutory creation. A person is "unfairly dismissed" if, and only if, the situation is precisely covered by the precise words of a statute. It is technically possible for there to be "unfair dismissal" when ordinarily there has been neither dismissal nor unfairness.(www.netlawman.co.uk/info/unfair )dismissal.php,email@example.com).
B The background
Philips J in Redbridge LBC v Fishman (1978) ICR 569, said many dismissals are unfair although the employer is contractually entitled to dismiss the employee. In contrast, some dismissals are fair even though the employer was not contractually entitled to dismiss as he did dismiss. (John Bowers, Bowes on employment law, 6th edition, 2002, Oxford University Press, New York,p260)
For example, in ordinary English, the coming to an end of employment on expiry of a fixed term employment contract is not "dismissal". However, it is exactly that for employment law purposes. Even if the employee specifically agrees from the outset that the fixed term will not be renewed he can still claim "unfair dismissal" at the end of the term if he has been employed for the minimum qualifying period and the contract is not renewed.
Additionally, a dismissal could be in breach of contract, totally unjustified and contrary to all good industrial practice and yet not be "unfair dismissal". For example, a dismissal taking effect after 11 months employment could not normally be unfair dismissal because in normal cases a prerequisite for claiming "unfair dismissal" is completion of at least one year's continuous employment with the same or an associated employer by the effective date of termination (''edt'').
a.How do people get unfairly dismiss?
Reason for dismissal
There are several circumstances in which a contract of employment might end. There were at first two sorts of termination of employment at the Commom law and later extended definition became necessary as the redundancy act 1965 and the Industrial Relation Act 1971 with unfair dismissal provisions , attempt the meet the deficiencies of the common law.
1.Resignation by the employee because he /she has find another job or the employee feels force to resign ,he can no longer tolerate the employer ‘s behaviour, in that case there might be a possibility of constructive dismissal claim at an employment tribunal
2.Dismissal by employer, this can be with notice or without notice can lead to wrongful dismissal or in a case of gross misconduct or poor performance which should be SMARTA(specific, measurable, achievable, realistic, timely and agreed)
The reason for dismissal does vary, the statute law provides for fair and unfair reasons (Era 1996,s98)
3.Termination of a contract of employment can be as a result of frustration
(Marriott v Oxford co-op society (no.2) (1970)
For a person to be able to bring a claim of unfair dismissal it is essential that he or she is (or was) an employee within the meaning of Employment Rights Act 1996. Proof that there was substantive fairness concerning the reason for an employee dismissal. If there was nothing with the job performance, when the employer does not have a fair reason for dismissing him or her. Procedural fairness, If the employer did not follow the disciplinary process when dismissing the employee. If the employee were dismissed for an automatically unfair reason, because of gender or age, pregnancy, working hours ,health and safety , race, disability…(www.direct.gov.uk/en/unfair dismissal)
B. CASES OF UNFAIR DISMISSAL
In unfair dismissal cases the burden of proof is on the employer to show the reason, or, if more than one the principal reason, for dismissing the employee. If the employer fails to prove the reason is one of the four reasons set out in ERA 1996 or "some other substantial reason", the dismissal is deemed to be unfair.
) Boychuk v J. Symons a (Holdings) Ltd,1977(a dismissal for conduct)
b) Alidair v Taylor (1978)I.R.L.R. 82.(lack of capability or qualificatons)
sulphur v laurie (1987)I.R.B.338
C) Wadley v Eager Electricity(1986) I.R.L.R 93
If the employer does prove that the reason for the dismissal was one of those referred to above, the Employment Tribunal must then decide "in accordance with equity and the substantial merits of the case" whether the dismissal was fair or unfair.
There are three time-limits which Tribunals do not have power to extend:
• The six month period for claims under the Equal Pay Act 1970;
• The six week period for an appeal against a non-discrimination notice under the Sex Discrimination Act 1975 or the Race Relations Act 1976;
• The seven day period for an application for "interim relief" when an employee alleges unfair dismissal on grounds related to trade union membership or activities contrary to Trade Union and Labour Relations (Consolidation) Act. The basic award part is not related to loss suffered. It is simply a multiple of a week's pay (as defined) according to a formula which takes into account years of service and age of the claimant. The practical application of the formula is:
• 1/2 a week's pay for each year worked between 18th and 22nd birthday;
• 1 week's pay for each year worked between 22nd and 41st birthday;
• 1 1/2 week's pay for each year worked after 41st birthday.
The most recent 20 years (only) are taken into account for the purposes of this calculation if a long service employee is being dismissed.
Procedure for redress (brian willey, employment law in context )
The procedure for a person to obtain redress for unfair dismissal involve the following :-deciding entitlement to complain
-Application to the employment tribunal
-the employer response
-the advisory conciliation and Arbitration service(settlement, withdrawal of complaint or process to the tribunal hearing)
A Tribunal will take into account whether or not the employer followed proper procedures (eg consultation/warning/discussion) before deciding to dismiss the employee. Failure to do so can turn a potentially "fair" dismissal into an "unfair dismissal".
The implied terms in the employment contract can also be of great significance when deciding whether a dismissal is fair or unfair.
Agreement not to go to tribunal
There is no room for contracting out of any of the provisions of the ERA 1996, not just the unfair dismissal provisions subject to important exceptions specified in the Act.
What do you get in court for unfair dismissal
In addition to compensatory award a successful claimant in an unfair dismissal case is also entitled to a basic award calculated by reference to a fixed formula.
The maximum possible award in "normal" unfair dismissal cases in recent years is/has been:
• £18,600 (£12,000 plus 30 X £220 for maximum basic award ) before 25th October 1999;
• £56,600 (£50,000 plus 30 X £220) from 25th October 1999 to 31st January 2000;
• £56,900 (£50,000 plus 30 X £230) from 1st February 2000 to 31st January 2001;
• £58,900 (£51,700 plus 30 X £240) from 1st February 2001 to 31st January 2002;
• £60,100 (£52,600 plus 30 X £250) from 1st February 2002 to 31st January 2003;
• £61,300 (£53,500 plus 30 X £260) from 1st February 2003 to 31st January 2004;
• £63,100 (£55,000 plus 30 X £270) from 1st February 2004 to 31st January 2005;
• $65,200 from 1st February 2005 ($56,800 plus 30 x $280 for maximum basic award.
Compensation for unfair dismissal is normally built up from two component parts: there are two remedies available to an applicant who successfully claims unfair dismissal: an order for re-instatement or for re-engagement ; and compensation award.(Brian willey, Employment law in context ,6TH ed,2002)p339
Re-instatement: means taken back by the employer on exactly the same terms and seniority as before or giving the same job back to the employee with the same employer;
Re-engagement: means is being taken back but on different terms
Compensation: basic award ,compensatory award and an additional award
Many awards, including basic award, are now linked to inflation.
Mitigation of loss
When assessing a compensatory award in an unfair dismissal case, the courts and tribunals apply the normal common law rules requiring a person who is seeking damages to "mitigate his loss".
What is a redress?
To set right by making compensation for a wrong. Thus as presented above it is suggested that there can be a redress ,however that redress may be adequate or not , but the employee may receive compensatory award or basic award, or can also make additional award if the court orders his employer to re-employ him but they ‘fail unreasonably to do so. The court can ask them to pay up to £25,000 can be awarded for wrongful dismissal or unfair dismissal.
In light of all the reasons above , it may be argued that unfair dismissal does provide part of the redress, adequate or not based on the particularity of the intended as a central remedy of reinstatement, that is , putting an unfair dismissed employee back to his old job, is granted only in 1 per cent of cases.