This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers.
Published: Fri, 02 Feb 2018
An Introduction To Dismissal
Dismissal may not unfair dismissal, dismissal is based on a contractual right to be confused. A claim for unfair dismissal is therefore my view of the employee’s employment contract to see if the employer has broken the contract.
The most common violation is when a worker has been dismissed without notice or notice is too short. Obviously, both sides can end the employment relationship, when they announce the necessary advance. This will either be the legal minimum wage or what is referred to in the contract employee.
However, the employer may be justified to dismiss the employee without notice (summary dismissal), if the employee committed a serious breach of the contract, such as theft. The employer must not have evidence of theft, is suspicious enough. The employer may also leave evidence that is discovered after the dismissal.
Another example of the dismissal is a failure by the employer a penalty followed in disciplinary proceedings.
Dismissal claims in the Employment Tribunal claims can, County Court or High Court are brought in depending on the value of the claim.
A wrongful dismissal if an employer dismisses an employee or ends without the employee, the notice of termination. A dismissal is unlawful if an employer or an employee ends dismisses without notice because the employer wrongly believes that there is reason for termination.
Finally, constructive dismissal, which is a form of dismissal shall occur if an employer without the consent or approval of the employee, a fundamental and important concept of employment changes such as wage or salary and then forced to accept the employees either the change or terminate . In each case, an employee may be able to sue the employer for the dismissal. However, an attorney previously consulted.
There are a number of options available, which has fired a worker illegally. One possibility is to require a standard employment contract file. This option is probably the easiest and cheapest. However, the maximum amount that an employee can collect in the course of employment standards claim $ 10,000. So if an employee wants more than $ 10,000 to recover from their employer, this may not be the right option for them.
A second option available to employees who are fired illegally, start a civil action against their employers. This option has no restrictions in terms of how much a worker can recover. However, the process of suing employers more expensive, time consuming and tedious. Going to through mediation or another form of alternative dispute resolution to save time and money.
Termination without cause
In contrast to the dismissal, termination without cause is lawful if done correctly. Termination of employment occurs for no reason, if an employee is terminated her employment, not necessarily because they have something horrible done wrong to the employer, but because her employer, for whatever reason has decided that the employee services are no longer are needed. The reasons could vary from economic restructuring to unsatisfactory work performance.
The most important point in case of termination without cause, is that if an employee is terminated without cause, he or she is entitled and should receive from their employer, on such termination. In other words, the employer must tell the workers to the time that they are going to be terminated (just how far ahead of time will depend on the circumstances). This gives the employee time to seek other employment. If an employee is terminated without cause and is not proper notice of termination is given an unfair dismissal has occurred. Therefore, a termination without giving a reason to be, but not always, a dismissal.
Although dismissal is based on contract law, there are at least notice periods specified in the law. This is so that employees are treated fairly by employers. These are as follows:
Time job in minimum period of notice
Under 1 month No Privacy
Over 1 month and 1 weeks
2 years service two weeks
Service 3 years 3 weeks
Four years service 4 weeks
This leads on to one weeks in advance for each additional year in the job, up to 12 years’ service. 12 weeks’ notice is the maximum that the law goes up.
However, a court or Employment Tribunal can allow for “reasonable time” This is more attention than the minimum protection. This discretion will be used only if it is unjust for the employee to receive only 12 weeks’ notice. This discretion is rarely used.
However, many contracts allow for more than the minimum established by law. For example, it is not for employees who have worked only for 1 year to 3 months’ notice unusual to under their employment.
This cuts both ways, if the employee chooses to go may require the employer and expect that to work, the workers said period. This gives the employer time to find a replacement. And if the employer wants the employee gives it to the employee three months to find a new job redundant.
Therefore, executives claim for unfair dismissal is to take place against unfair dismissal law, because they are to be sued under the terms of the contract. Some contracts may find that the notice period is 12 months or longer.
Finally, employees can at shorter notice than the above-mentioned agreement or no notice at all.
If the employer breaches the contract the employee has the choice of adoption of the injury or retirement.
Examples of breaches include:
1st False accusations of misconduct.
2nd Harassment of its employees.
3rd Non-paying wages.
4th Changing an employee’s work or employment.
5th Change the employee’s work site without prior notice (if it is an important change).
In fact, everything that a violation of “mutual trust” between the employee and the employer. This is the goodwill between the two parties that exist, the relationship is workable.
If the employee accepts the breach by the employer and will remain in her job, the employee may have compensation from the employer for breach of contract.
If an employee resigns they must give proper notice stipulated in the contract. Or if they will not have a contract or a notice to the employee can not contract the minimum of one-week notice.
However, an employee is entitled, without prior notice if the employer is obliged to withdraw a serious breach of the employment contract.
See Employer Breach
If an employee is forced to resign because the alternative would be the dismissal by the employer, the employee may continue to claim unfair dismissal or.
Unfair dismissal & complaints
An employee can claim unfair and dismissal.
However, any money received under a break the same amount received under the other claims. This is to stop the workers receive double compensation.
Damages are designed to compensate a party (employee or employer).
To the party in the same position they would be if the contract be carried out properly. This normally includes the right amount of money for the correct notice period. It can also be no salaries, which have not been paid.
An employer for damages where an employee has not given the proper amount of notice. Under the law they will only receive compensation for one weeks notice. However, if the contract allows the employee a longer period of notice of the employer to claim it. Employee
In the beginning, the amount for the publication and any unpaid wages. An employee may also receive compensation for the loss of the following:
1st Perks – such as company cars and private health care.
2nd Holiday pay.
3rd Commission, bonuses and shares in their contract.
4th The loss of pension.
The court will consider the money value on these losses for the correct notice period.
The employee may also interest on the entire amount from when they were dismissed until the actual court hearing.
Employees must pay tax and national insurance contributions to the damage they receive. Usually this is before the employee receives the damages deducted. If the damage without deductions of the amount of damages to be paid will be raised to take into account that the tax will be payable.
Social security payments
All payments, social security for workers during unemployment will be replaced by the damage they will be deducted.
Employment Protection Act Compensation
Like the damage caused to the worker under employment protection, the amount of the compensatory award to reduce under employment protection law by the same amount given.
Level of damage
The employee is to minimize their losses, this means that the employee must:
1st Actively seeking work.
2nd Take a reasonable offer of a job.
Qualifying for employment protection
To enjoy protection against dismissal of an employee must meet the following conditions:
1st Working full time or part-time employees, the number of hours worked per week is irrelevant. Self-employed are excluded.
2nd Do I have one years continuous employment. However, see exceptions to this rule.
3rd The workplace of the employee’s completed less than three months.
This is because an employee has to place only three months from the date of dismissal, the claim.
Dismissal law exemptions
Exceptions to the one years continuous employment are, where the dismissal of any of the following reasons:
1st Union work, conducted at an appropriate time. This is usually done during working hours or working with the employer’s permission. (This does not strike or work to rule, the violation of your contract).
2nd The membership of a trade union.
3rd The refusal to join a union.
4th Where the selection for redundancy was associated with a trade union issue.
5th Where dismissal is related to pregnancy and maternity rights.
6th Betting shop or industrial workers, the task of working on Sundays.
7th If an employee is dismissed on grounds of gender, race, age or disability discrimination. An employee should have a claim for discrimination, not unfair dismissal. If they are successful probably receive more compensation.
8th The dismissal of an employee in connection with asserting their rights under employment laws.
9th dismissal of an employee to observe Health & Safety rules.
10th If an employee discharged for work as a representative of an employee or a person a candidate for a workers’ representatives was.
11th The dismissal of an employee in connection with asserting their rights under the Employment Relations Act 1999, section 10, the right to be accompanied by a disciplinary or grievance hearing.
12th The dismissal of an employee as a pension scheme trustee connected.
13th Dismissal in connection with the Working Time Regulations.
14th The dismissal of an employee in connection with asserting their rights under the National Minimum Wage Act 1998.
15th The dismissal of an employee in connection with participation in protected industrial action.
16th The dismissal of an employee in connection with asserting their rights under the Tax Credits Act of 1999.
17th The dismissal of an employee in connection with the assertion of their rights under the part-time workers (Prevention of Less Favourable Treatment) Regulations 2000.
18th The selection of an employee for redundancy on a base that was would be automatically unfair if the same reason was used to dismiss the worker.
End of employment
Because claims must be made for unfair dismissal within three months it is very important to decide exactly when the three month period actually begins, this is known as “the effective date of termination (EDT). This is not always the date when the employee says that they are dismissed. If an employee is terminated, the notice period begins from the day after it was given.
The three months begins running in the following cases:
Period of notice
On the same day that the notice period ends. It will work no matter whether the notice period by or not, or even whether the employer actually gives the right of notice.
Summary dismissal (that is, dismissal without notice)
The three months runs from the date of summary dismissal. Immediate notice usually happens when a worker commits a serious act, such as theft or assault.
Payment will be settled (ie the payment instead of notice)
Where the employer pays the employee for their notice, but do not ask them to work through the notice period. The three months from the day of discharge.
Appeals & Disciplinary Procedure
If the employer used the dismissal proceedings against appeal to and at the end of the procedure the original decision, then the original date of dismissal is affirmed. Since most procedures take about three months the workers would not be able to bring a law against unfair dismissal claim. If an employee is suspended only while the employer, the procedure starts only three months of the decision to dismiss actually run. to do some work that just three months expires after the appeal and disciplinary proceedings are terminated. If an employee has an employment contract, the disciplinary procedures under the contract may be included.
The “Effective Date of Termination” can sometimes be extended. For example, if an employee is summarily dismissed one weeks occurs before 1 years continuous employment in force. But that’s not EDT will be extended if the summary dismissal is justified. The Employment Tribunal will look to whether a summary dismissal is justified. This extension can also be used in cases of constructive dismissal.
The 3-month rule
The best advice is that if an employee a lawyer will be done as soon as they are dismissed or suspended should consult do, this will give the lawyer time to investigate the case.
In the meantime, if it can be a company procedure, the employees still there as long as go as they do not miss the three-month period.
Extensions of the period of three months have been permitted for the following reasons.
1st If the employee has been ill.
2nd Incorrect advice from Job Centre or Employment Tribunal staff.
3rd Delayed in the mail.
4th New evidence comes to light later, the claims possible.
Extensions are not available for the following:
1st The employees did not know they could claim.
2nd When the employee is connected to other legal actions with the dismissal of waiting until the end.
3rd An attorney or counselor gave wrong advice.
Employment Protection Act & Retirement
An employee can not claim unfair dismissal law, if the employee has reached the normal retirement age for their job with the employer, as this automatically a fair reason for dismissal.
Some employers have a higher retirement age than 65, can not but have a lower retirement age.
This does not apply if the dismissal to an employment-protection legislation is associated exceptions. For example, if the employee was dismissed for belonging to unions.
Certain groups can not claim unfair dismissal law, this is done for practical reasons, for example:
1st Members of the armed forces work, the members of the police, employees of state agencies, where a national security certificate was issued share fishermen.
2nd Employees who work under illegal contracts.
The illegal part of the contract can be removed and the rest remain, so they claim unfair dismissal law, but only if they are not aware of the illegality and not profit from it. Not knowing the law in a certain situation is no excuse, the employee must have been unaware that a particular practice was actually going on.
This is when the workers their jobs because of the employer’s conduct of the leaves. For example, the worker has made life very difficult and the employee believes that they do not stay in their profession. If this happens the employee resignation is effective as a termination by the employer treats, so that employees can claim unfair dismissal law. The employer must have the measures amount to a fundamental breach.
Examples of constructive dismissal may include:
1st Not supporting managers in difficult work situations.
2nd Harassing or humiliating staff, particularly over other, less managers.
3rd Victimizing or targeted certain employees.
4th Changing the workplace of the worker’s content or terms without consultation.
5th A significant change in the employee’s job location at short notice.
6th Falsely accused an employee of misconduct such as theft or the inability to carry out their work.
7th Excessive demotion or disciplining of employees.
An employee may withdraw a serious incident or by constructing a series of incidents. However, the employee must resign soon after the incident, to be able to count on that. In general, the actions of the employer must be a serious breach of contract will be.
Constructive dismissal and unfair dismissal law
An employee is constructively dismissed only proves that they were dismissed, it does not automatically prove that the dismissal was unfair. The employee must go further and prove that the dismissal was unfair.
This can give a difficult area can terminate an employee and claim constructive dismissal by the employer’s conduct, but the employer could turn around and say that he (the employer) breached the employment contract, that it was done, for example, because of the reorganization of the company. The chances are that the employer be given the benefit of the doubt. The reason for this is that Employment Tribunals do not like to interfere with business.
Employment Protection Act Test
A claim for unfair dismissal must go through a two-step test.
1st Had a fair reason for the dismissal?
And if the reason for dismissal was a fair
2nd Was the dismissal fair deal?
This means that an employer to dismiss an employee for a completely legitimate reason, but the manner in which she was treated was unfair dismissal law and so a claim can be made.
Grounds for dismissal
The following is a list of reasons for rejecting a fair employees and refers to an Employment Tribunal checks.
This is divided into several areas.
Qualifications – the workers have the necessary qualifications for the job and is a particular qualification actually needed for this type of work?
Incompetence – this can incompetence or a very serious incident, individual things, but was also the trained staff were warnings given?
Health – a worker who is actually sick regularly, what was the illness, how long would the workers have turned to examine the employer, alternative employment opportunities for the workers?
Here are some of the possible situations where an employee gave the conduct of the employer good reason to dismiss them to:
• corruption, including accepting bribes.
• drunkenness in the workplace.
• use of drugs in the workplace.
• Unfair practices.
• Leaking confidential documents or information.
• Hacking into computer files containing this stealing of passwords.
• absent from work on a regular basis.
• Constantly late for work.
• Inappropriate clothing or appearance.
• to take leave without informing your employer.
• Inappropriate behavior with other members of staff during office hours.
• Inappropriate behavior outside of working hours, which has an impact on the workplace of the employee.
• Also tell your employer exactly what you think of them.
All of the above can be persistent, for the conduct of an employee’s previous warnings or individual incidents are of serious nature, must be received.
The court will also consider the following:
a) the conduct of the employee was thoroughly looked into?
b) the employer has to believe that the employee committed the crime?
The employer does not need absolute proof in a case of dishonesty, but they have strong evidence of infidelity for them, the employees will be laid off.
The employer must be a fair procedure for the selection of who should be fired. Once the method has been adopted at the employer must comply with it. An employer can not select an employee for redundancy if the dismissal is on a law based exceptions.
Please note the redundancy section.
4th Breaking the Law
For example, a foreign worker whose work permit has expired, continue to occupy, then the immigration laws would be broken. However, the employer should consider whether the situation can be made legal before dismissing the employee.
5th For another reason
This is very wide, and is used to cover virtually all other possible reason. For example, if a company to reorganize and some employees refuse to re-organize with him or when no longer suitable. For example, an employee of the computer when they were installed despite training application was denied release, that said, be dismissed for a valid reason. It may dismiss an employee because an important client demands it.
Fairness of the proceedings
The test here is whether the employer used a fair trial and it makes sense for the employer to finally decide to dismiss the employee once the procedure had been performed.
Any Employment Tribunal would consider some of the following:
1st Was the employee a fair hearing by the employer?
2nd What evidence was used at the meeting and it was used?
3rd If the employee has a representative at the hearing or a union official?
4th If there are multiple people were involved, they all treated in the same way?
5th Had the employee done this before?
6th Has considered by the employer, warnings, they have been used in the past?
7th Has considered by the employer, the overall performance of the employee, for example, has the employee been a long history of good work and behavior?
8th Could the worker rather than dismiss disciplined?
9th Did the employee have an effective right to appeal against the decision?
10th Was the whole process in the same way as the previous procedures performed, if not as different and why?
If retired on the other side of the employee because he or she thought they were too hard to be treated, it would be easier to search for the Tribunal and to find a disciplinary matter unfairness.
If the forced termination of employment protection legislation is one of the exceptions is connected, just to prove that it was unfair.
Dismissal Compensation Law – Introduction
Here is an Employment Tribunal is an employee back to their old job and compensation for loss of wages for the period from the job.
See also Additional Award
The employee returns to a similar job with the employer.
See also Additional Award
It is very rare that two are appointed by an Employment Tribunal for an. The reason for this is that they are reluctant to force an employer to include an employee are back.
This is what usually happens if the employee wins their case.
This is split in the basic award and compensatory measures Award.
Whereas, in awarding compensation for unfair dismissal the Tribunal consider whether the plaintiff in the litigation by the employer appeal against that tried to resolve a claim to arbitration.
This, by the employee’s age is calculated to arrive at years of service and average weekly payment to a figure. However, the weekly figure to a maximum payment of £ 380 per week and the maximum age that will be considered is limited 20th But the years of service depending on the age of the worker.
This is how we calculate it in detail.
Years of service under 22 years old, is the weekly pay multiplied by 0.5
Years of service are charged 22-41, the weekly is multiplied by a
Years of service from 41 from the weekly pay is multiplied by 1.5
Therefore, the absolute maximum that can be awarded is:
20 years at £ 380 x 1.5 = £ 11,400.
The Department for Business Enterprise & Regulatory Reform Berr, (formerly DTI) publishes a simple calculator for the preparation of these figures.
Basic Award Deductions
The court will reduce the Basic Award in the following cases:
1st If the employee refuses an offer of reinstatement and it is unreasonable to refuse the offer.
2nd The employee is partly to blame for their own dismissal.
3rd Conduct before the employee was dismissed, this means not necessarily connected to the actual dismissal. The behavior can still be considered if it is discovered after release.
4th Severance payments already received by a worker if the release upon payment by redundancy.
5th Bonuses is linked explicitly or implicitly to the basic award.
The maximum an employee can be awarded is £ 65,300 as part of the compensatory measures Award. This award is intended to compensate the employee for financial loss in connection with the dismissal, including the costs and the loss of benefits.
The Employment Tribunal holds the following:
1st Loss of earnings
This is from the date of dismissal up to the tribunal hearing, and after deducting taxes and social contributions. If the notice the employee is the time from the end of the notice period runs until the hearing given. If the employee makes a claim taken into account during this period and these are taken from the final amount.
2nd Future loss of earnings
The tribunal will estimate how long the employee will remain out of work in the future. This is their age, experience and market demand for their type of skills. If the employee already has a new job that they do not receive this award.
However, if the new job pays less, the court assigns a value for the time to pay for the employees to return to the previous figure rise earned in the previous job. There are obviously a lot of guesswork involved here.
3rd Loss of Perks
Health care, company cars, etc.
4th How Dismissed
If the employee was in the way that they dismissed it harder for the employee to find a new job. For example, she was in a public way by a company working in a tight market, “dismissed that got around.”
However, the court will not consider their feelings hurt.
5th Loss of employment
The employee will start again from scratch in her new job and need to work for 1 year with their new employer to recover dismissal, the Court will take this into account.
Loss of employment
The employee will start again from scratch in her new job and need to work for 1 year with their new employer to recover dismissal, the Court will take this into account. The court will also award collected compensation for the loss of the notice period under the previous job.
6th Loss of pension rights
The court will generally follow a few guidelines to develop this character.
The Court will consider the following deductions from the Compensatory Award:
1st Severance payments under the employee’s contract.
2nd Payments made by the employer to the employee by the dismissal.
3rd Deductions will also be made if the employee shares some blame for her dismissal.
4th Deductions if the worker made no effort to have to find a new job, or has refused suitable job offers. Obviously the court is the situation where an ex-employee sets down again and waits for the maximum compensation will come in to avoid
5th Where the dismissal is actually fair, but the way it was conducted was unfair to award costs.
6th Where the employee in writing, with notice that an appeal is available, but not attractive. Compensation may be reduced by up to two weeks under these circumstances, but may be increased by up to two weeks if the employer prevents the employee with the appeal process.
Any income support or unemployment benefits received by the employee, not indeed work will be recouped by the DSS, which will serve a notice of the employer. The employer then pays only the employee the remuneration less the loss figure.
If not ask the tribunal to occupy the employer back or reinstatement of the employee and the employer refuses, the court, these prices against the employer on the basic and compensatory measures will make awards. The award will pay for between 26-52 weeks, until the maximum of 380 pounds per week.
If the employer refuses to take back the employee, the arbitral tribunal may also award these figures, if the employee actually got much more than that.
Complaints and disciplinary procedures
• Disciplinary procedures
These procedures apply to all employers.
Small employers are no longer exempted.
However, there are certain situations where an employer is not required, the statutory disciplinary procedures (in cases of collective redundancies where 20 or more employees are following to be made redundant within a period of 90 days (see our section on redundancy), or if there are further grounds for dismissal specify how the employer’s premises or burning if the employee would continue to employ a legal obligation imposed on the employer violation.
In addition, if an employee has applied for a tribunal hearing the application or where industry-level agreements are in place and are part of the settlement stage of the appeal of the statutory disciplinary procedures should not be used.)
The following minimum standards, disciplinary procedures will be introduced by the Employment Act 2008 and the ACAS Code of Practice (April 2009) (See Annex I).
• An employer must set out in writing the reasons for the alleged misconduct.
• The employee must be encouraged to participate to a disciplinary meeting and has to be accompanied by a statutory right to a work colleague, union representative or official of a trade union.
• After the meeting, the employer must inform the employee in writing of the decision.
• The employee can appeal.
An Employment Tribunal for compensation of up to 25% for failure to follow the ACAS code increase.
Employers can have their own contractual disciplinary and grievance procedures, as long as they set no less than the minimum requirements of the ACAS code.
The employer must give written notice to the employee to establish why the employer has decided to take disciplinary action, ie, the employee alleged misconduct and the reasons for the thoughts of the employee is guilty of the alleged misconduct.
The employer must meet with the employee who has the right, accompanied by a work colleague or trade union representative. The meeting will be at an appropriate time and in a favorable position. At the meeting the employer should state the case against the employee and the employee opportunity to respond.
After the meeting, t
Cite This Essay
To export a reference to this article please select a referencing style below: