James is a computer programmer at Mega- Bytes Ltd and has worked for them over the last twelve years; he was dismissed without any notice. His supervisor has claimed that James was incompetent and useless.
James has been working for this company for so many years now and has never had any problem until now. James was sacked on the grounds of wrongful dismissal and will now need to follow legal procedures to resolve his case.
Before James can start any kind of claim procedure for this case he has to find out what rights he has and how can he enforce them. James is possibly eligible to a potential claim for wrongful dismissal, as Ian Hunter (pp…2003) referred that “employees has a time limit for submitting a claim an employment tribunal within three months of the date of dismissal” e.g. from 10 December till before 31 February.
Dismissal of the employee by the employer
On the grounds for fair dismissal an employer has to make sure that they have given appropriate guidance and notice to the employees, if they keep employees informed of the relevant facts they will know what procedures and claims they can make. If the employer has breached the contract without notice it is likely to give the employee the right to sue for wrongful dismissal.
The employment tribunal will normally require information to whether the employer has established and acted reasonable following the steps of appraisal from the probationer e.g. The Post Office v PA Mughal
Gwyneth Pitt 2007 (pp217) mentioned that since 1963 employers have been required to give employees a written statement of the notice they must be given to terminate the contract by common law procedures to make it reasonable and then the contract is terminated lawfully.” Adequate procedures will help to avoid whether an employee has a claim for wrongful dismissal.
James wouldn’t be able to claim for wrongful dismissal if his employer had justified the reasons for dismissing him. From the case study it shows that he was dismissed on unlawful grounds so therefore he will be able to make a claim for wrongful dismissal.
Maxine the James’s supervisor could have acted differently in terms of her attitude to the procedures in this case, sometimes a little conversation or meeting can make difference to avoid the dismissal procedures e.g. a disciplinary meeting could have been done and then feedback from the meeting could be acted on, sacking him without notice is unfair and in this case it shows that Maxine failed to following the disciplinary procedures.
The essential features disciplinary procedures are:
According to ACAS (www.acas.org.uk), a good disciplinary procedures should: be in writing, specify to whom they apply, be non discriminatory, give workers an opportunity to state their case before a decision is reached and ensure that workers are given an explanation for any penalty imposed and etc…
Therefore employers would only be able to dispense an employee with a reasonable justification that employer would have decided to dismiss employee summarily. An employer is legitimately entitled to dispense employees with a disciplinary procedure where dismissal was inevitable.
In this case Maxine didn’t follow the above procedures of discipline that are suggested by ACAS. Maxine should have done the following:
Ensure that the employee knows of the case against them and has a chance to give his side of the story before any decision is made.
Ensure that no one is dismissed for their first offence except in cases of gross misconduct.
Giving the employee a written explanation for what disciplinary action is taken and also ensuring that employees know exactly what improvement is required from an employer’s point of view.
Maxine’s engagement and reasons for dismissal
She mentioned that James was incompetent and poor performance and she had enough of his incompetence.
It is quiet controversial because she claimed that James was incompetent, based on reasons for dismissal it should result in dismissal on grounds of capability.
But from the case study was also said that he had been working for the company for more than twelve years and he had never had any problem at work.
From misconduct hypothesis James would commited a lateness misconduct to complete a database required urgently by the Sales department but If James was that incompetent he wouldn’t be in the company for that long.
Before she dismissed James she should have sent him a formal letter of dismissal and reasons for the dismissal appears under Employment Rights Act 1996 or give him a correct period of notice for example as suggested by D. Keenan and S. Riches pp.562 (2007) suggests:
Dear Mr James
I am sorry that you do not have the necessary aptitude to deal with the work which we have allocated to you. I hope that you will be able to find other work elsewhere which is more in your line of work. As you will recall from the interview this morning, the company no longer requires your services after the end of the month.
A wrongful dismissal is based on contract law as dismissal in breach of contract that is a relevant issue for a court or tribunal hearing such a claim will be the employment contract obligations of the employer.
It’s occurs most commonly where an employer summarily dismissed an employees without the period of notice or with insufficient period of notice under employees contracts of employment.
The compensation value on wrongful dismissal cannot exceed £25,000 of the payment and employee’s who has been dismissed is entitled to receive, upon request (XpertHR.co.uk).
Damages for Wrongful Dismissal
Damages for wrongful dismissal awarded or remedies usually equate to the value of the employees pay and benefits; the compensation is based primarily on the employee’s loss of earnings caused by the dismissal and “compensation cannot include compensation for injured feelings or pride or the fact that future earning are affected” Carr and Kay (pp126 1998).
An employee is entitled to be compensated for any loss that sustains as a result of employer failure to provide reasonable notice. Employee can claim for damages if employer fails to provide reasonable notice and it can be compensated by a few options: Bonuses; Stock Options; RRSP Contributions; Medical Coverage etc (…)
“In any wrongful dismissal case all the factors of compensation must considered and all potential losses canvassed to ensure that you have been adequately compensated” suggested by Rose Keith (CanadaLegal.info).
James can be entitle to claim compensation as innocent party for what he actually lost, not to punish the party in breach of contract, therefore the court have developed principle to ensure and protect employees who has been wrongfully dismissed receives compensation only for what his loss.
A similar case happened on Blarney V Colne Liberal Club (1995) when an employee has been “summarily dismissed for failure to hand over the bar takings to his employer or to put them in the safe and hand over the safe keys” D.Keenan and S.Riches (pp.583)
But before James making a case at tribunal he has to following the statutory discipline, dismissal and grievance procedures.
Redundancy Pay for this Case
According with employer fails to give the required notice or wages in lieu of notice that the common law action of wrongful dismissal. James can be entitled to claim for twelve weeks from one week per years as employee employed in the company.
Employers are expected to compensate any employee who has been made redundant, and who has been worked for the company for at least two years in continuous employment by paying the employee an amount of redundancy pay.
The main keys to increase redundancy pay are Age; how long the employee has been with the organisation. The actual amount the James would be entitled to if they are redundancy is calculated under age but on the case study conduct doesn’t have any information about James’s age.
So he can be a young man employee or old man employee. If he was a young man employee he can found another job with more chances or possibilities than an old man. If he is old man this can have other importance on the damages issues.
If the redundancy based on pay weekly it would be £3720 there is an upper earning limit for the amount of weekly pay rate that is £310 but this amount alter each year (Hook and Foot pp.477, 2008).
Employee’s Options Following Employer’s Breach of Contract
“Although employees are allowed a reasonable period of thinking time, ultimately they must decide how to proceed. The options for employee for the following options are:
To stay and accept the changes,
To stay and sue for damages for breach of contract,
To leaving and sue for wrongful dismissal (and unfair dismissal if eligible)” Ian Hunter pp.212 (2003).
A grounds unfair dismissal it’s normally be considered potentially unfair when employers don’t provide these following categories reasons had happened during the dismissal procedures as
Misconduct, capability or qualifications for the job entitled and also redundancy.
“Section 94 of the 1996 Act provides that, every employee has the right not to be unfairly dismissed” Carr and Kay pp.133 (1998).
All the employee’s must be entitled to bring a claim for example who have been dismissed or be dismissal under notice; except self-employed or employees who have on the basis of a compromise agreement employees are not eligible to claim to for unfair dismissal.
“Employees who voluntarily resign, for example, will not a claim for unfair dismissal because a resignation is not a dismissal” Ian Hunter pp.215 (2003).
In lawful dismissal case, employers must show that dismissal has to be a ‘fair’ reason for dismissing employees and employers must have completed the necessary qualifying period of employment to avoid unfair dismissal case claimed.
From the above information shows that James’s case didn’t present any aspect of unfair dismissal.
Employee Claiming Grievance against Employer
James can be able to make claim for grievance procedures against his supervisor at the employment tribunal if necessary because his supervisor had not an act fair and reasonable.
She as supervisor also need to be able to discipline employees when they either make a mistake at work or if they did something really serious such as assault or harass a colleague that result in gross misconduct.
If James wishes to use the grievance as a basis for an application to an employment tribunal the grievance it must be immediate set out in writing to supervisor and an initial meeting is held for the statutory grievance procedure (Hook and Foot 2005).
Information and consultation at workplace
From the case study shows that James’s manager gave him wrong information about his rights on his wrongful dismissed, saying that “it’s not worth the bother. They will just rubber stamp what the assistant manager has done anyway”.
second ACAS booklet of the Employee Communications and Consultation (www.acas.org.uk) it shows that’s they failed the information and Consultation procedures that provide the communication process between management and employees or their representatives jointly to examine and discuss issues of mutual concern aspects.
Employer has dismissed James also attempt to block the employees to claim for compensation. On the other way they should advised or sent James to the representatives of consultation, trade union (consultation) act 1992 defines as appropriate representatives of employment rights (Nairns pp. 305, 2008) e.g. who have the authority to receive information and be consulted about the employment rights.
On EU Right to information and Consultation suggested by (Nairns 2008) says “the key issues in the directive are that employee should be properly informed and consulted about major issues that will have an impact on them”.
The conclusion of the offer research on case conducted shows that there is not principled basis of common law rights to protecting employees from wrongful dismissal, resulted from their circumstances of alleged mistake.
As the case study show that failure wasn’t intentional but the other way doesn’t show how big the report required (…) from James supervisor. If James was incapability to do the task he was entitled, he should be re- trained since the supervisor noticed that James wasn’t able to perform or complete his task as employee.
The Relationship between the employee and employer it also result in employee under motivation on workplace. According to Maslow, employees have five levels of needs (Maslow, 1943): physiological, safety, social, ego, and self- actualizing.
Employee motivation is really important and helps organization survive to avoid job dissatisfaction that doesn’t show on the case.
The contrast mentioned by the supervisor about James capacities but the other hand shows James without any previous case over twelve years; it means between employer and employee was a good relationship or good information and communications in the company.
From the research made shows that James’s employer failure to follow the disciplinary and grievance procedures required by employment act1996 for disciplinary procedure or dismissal. So James will be entitled to claim for wrongful dismissal and morale damages as employee dismissed without notice and was been insulted by his supervisor.
Employer should provide so protection to employees must terminate the contracts by notice under common law and justify any reasons for dismissal that’s the way James employer should acted in this case. If employee’s committed mistakes they have to suffer a disciplinary action under the common law.
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