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Eligibility Criteria in Dismissal

Would the conduct have the effect of destroying or seriously damaging the employment relationship?

As per the provisions of law in UN, the employers can discuss the exit interviews held with their employees can be used against them in any tribunal meetings.  This new rule formed need to deal with various situations where prejudice is not applicable as when the two parties are not in conflict     

Employment Rights Act (ERA) 1994 states that an employer cannot dismiss his employee on unfair grounds (Legislation.gov.uk, 2014).

The various stages of UN are eligibility, iniquitous reason, logical dismissal and justified reason.

The eligibility criteria for UN are working for a definite period which qualifies for an usual reason on unfair grounds. For example, if the employment date of the person is beginning before 6 April 2012, he can claim after he has completed one year of service.  If an employee joins after 6 April 2012 he can claim the dismissal period that is after two years of employment (Gov.uk, 2015).

Yes, the applicant is an employee who is working in the organization of this Section 230(1) of the Employment Rights Act is applicable.

As per Section 230(1) of ERA 1996, an employee can be referred to an individual who works under a contract of employment in the workplace. This definition is not right, so the court has conducted numerous tests to justify an employee.  The important aspects attached to an employee are:

  • For an individual to be an employee ha has to work under contract

  • The work provided to the person has to be carried personally to him only

  • The two parties i.e. management and employee have to have the mutual understanding to work together (Thompsons.uk, 2005).

  • The employer has to command the employee to work in the given direction

A contract of employment is formed between an employer and employee in the workplace and it is an agreement made between them for fulfilled by an employee such as:

  • Duties and Responsibilities to be content

  • Conditions for employment in office timings

The terms of the contract must be satisfied from both the ends until he is being dismissed by providing them prior notice. This offer provided to him is valid when he accepts the contract and the points have to be written down within a legal procedure (Gov.uk, 2014).  But, the terms of the contract will end on the day when the employee leaves the company.

It has already been stated above that a contract is formed between the employee and employer when he is in service. The rights and responsibilities of employee under contract of service are as follows:

The worker is controlled by the owner for performing the task given to them by their manager

The employee has flexible working hours and a definite place to work in organization

Employment Rights Act

The worker has to complete his task alone, and no substitute will be available in his place

Every employee is entitled to fundamental rights such as leaves, maternity rights, allowances,

The individuals are themselves liable for the work they perform and in case of any error occurred they need to correct it

MIL is a market research company who recruited full-time interviewers but also for handling most of the work it employed casual interviewers (Hmrc.gov.uk, 2015). The fact that came out that interviewer was having access to all materials of interview guide and the workers accepted every work.  They had a flexible approach to work where the employer asked them to work for 10 to 14 days and were allowed to send any other substitute. This period continued for 81 days in which Mr. Irving worked for 61 days and eight half days, but the payment was made daily with expenses. When he started working, he was accompanied by his supervisor and the contract did not have any holiday in any case whatsoever.  In the meantime the organization decided to dismiss Mr. Irving from service. On this matter, Minister of Social Security said he worked under the contract of service, but the company was against the decision. As believed by Cooke J, he was under various contracts as in the first case if he is working for himself he is working (Cabrelli, 2010). Secondly, it stated that control is significant in nature and at the last Cooke J the company had the policy of no substitute and the service provided is under contract. As per page number 187, there were no leaves entitled to them which stated contract period is small, and this is not enough for deciding employment status. 

  1. Yes he is excluded

  2. No, he has not crossed qualifying period of continuous employment

Unremitting Employment can be defined as working with the same employer without taking any break. The individual can be absent from work if he has taken one of the following reasons given below:

  • Sick

  • Maternity Leave

  • Temporary Lay Off

  • Taking breaks

  • Redundancy Payment

  • For providing them flexible work requests

This employment is calculated from the day of work the individual has joined and some breaks attended by the employee are (Gould and Rubenstein, 2008):

  • Annual Leave

  • Overseas of employment with the same company

  • Have joined military services like Air Force

  • Lock-out of employers

  • When a professional body is being taken over by another corporate body

  • The time is taken for unfair dismissal and employee being replaced  

Yes, it affects the service as in the case of strikes it is not included in continuous employment as breaks. For example, if an employee is working for 20 days in a month and in which 5days are stricken, so they actually worked period is 15 days.  Effective Date of Termination (EDT) is really applied as per the notice, and without notice it won’t be affected.  

Stages for Unfair Dismissal

The law of unfair dismissal comes under Employment Rights Act 1996 as it can happen as per the notice or without providing notice to the employer (Acas.org.uk, 2015). In cases where the employee has committed a big crime such as fraud or sexually harassed an individual who attracts dismissal at the same time. It depends on the policy of the organization. The employee might refuse a job in any other location, or if the fault is of the organization, the goodwill will be down. This generally depends on the type of words i.e. abusive languages for dismissing the worker that may attract harsh words. The test applied in checking the reasons for dismissal had to pass through two stages- dismissal for the fair reason and dismissal decision made with fairness. Thus, it states that the notice taking place for an employee is valid and was the process fair in treating the claim. The action which the organization took should be written down by following the grievance policy.    

In the case of Tanner vs. Keen, the boss used abusive words to an employee by stating him with harsh words and dismissing him right way (Anthonygrant.com, 2014). The tribunal who handled the case said the employee did not receive approval for joining the office. He was in the shocking state as how could an employer state such words to a worker in the organization.

As per ERA in 95(1) (b) states that an employee can be dismissed by an employer when the period is limited, and if it gets terminated it will not be renewed again for further process.  For example, if an individual contract is coming to end while she is on maternity leave and the contract would not be renewed. In the case of maternity leave, she can claim non- discrimination case which is not linked with her leave for renewing the contract.  If the contract is not renewed due to redundancy, the employer will have to give her any other role as per her suitability. The employee will join the office after her maternity leave again.

It is different from regular while terminating a contract for employment as in this the employee terminates the contract, not the employer. This process takes place by resigning the contract, and it is purely based on employee’s attitude and behavior (Richardson, 2001).  As in this termination, the employer is defined as “Repudiator breach and the employee treat himself as dismissed from the services. This termination can be about a case that is going for a lengthy period which results in breaching of trust and confidence.

Contract of Employment

As per Western Excavating v Sharp the case deals in labor law where Mr. Sharp was not paid continuously for five days as he was off duty.  The Employment Tribunal said he was facing financial stability, so the case was if the employer was guilty from his part and the fairness was wrong on their part. The mutual trust has been broken that affected employer and employee relationship by judging wrong decision on their part.       

As on case of France v Westminster City Council it was informed by his employer that the work from home option should be stopped. France resigned from the service with UD case and tribunal stated it as informal on their part and out of her contract terms (Eversheds, 2003). It is happening in this case of traveling, and it was found no breach of contract took place.  This breach is anticipatory as the time allocated is within time.

In the case of in reasonable accusation of theft (Robinson), the employer Marks & Spencer had put incorrect charges on BBC director and producer for stealing pork and £60million of peppered steak.   When seen in video footage it was found a 15 years younger boy committing the crime, so he asks for £5,000 for compensation and money spent in spending from their store. The store guards are too be blamed for the conduct for not trusting him. The retail giant Mr. Robinson he said it was withdrawn on May 27. It shows their behavior as they have not yet found guilty on their part for being sorry for the crime committed (Silverman, 2014).          

A firing can be considered as unfair until and unless the employer can provide substantial grounds to justify the dismissal except the cases that involves constructive dismissal. Thus the employer to justify the dismissal has to prove certain facts:

  • He needs to provide evidence that the dismissal was related to one or more of the reasonable basis that have been put forward by the legislation (Mann, 2011).

  • He also needs to prove that he has followed just procedures and have acted in reasonable way.

  • He also needs to disprove the allegations of the employee if the employee claims that he has been dismissed in an unfair manner.

Thus, the logical reasons by which dismissal can be conducted are as follows:

This includes various issues on the part of the employee like absenteeism, persistent absence for reasons like injury, illness and lateness (Richardson, 2002).

The employee can be dismissed by the ability to perform the task. However, in this case, it is important that the employee should be made aware of the standards that are expected of him and these standards must be relevant to the tasks for which he has been hired to perform.

Dismissal by talent can be on two grounds:

  • Either the employee has misled the employer at the time of joining regarding his qualification.

  • The company has made various attempts to make the employee obtain further qualification, but he failed to achieve.

Constant Employment

The employee can be dismissed by gross misconduct.

The employer needs to show that there is redundancy situation within the organization, and thus, the dismissal is fair.

The employer can dismiss the employee if the continued employment contravenes the law (Richardson, 2002).

So this can be illustrated with the assistance of dismissed following a single act of negligence with the help of the example of the case of Alistair Ltd v Taylor. In this situation, the pilot while landing the plane crashed it and thus he was dismissed by incapability to perform his task. However it is important in such cases there are two elements which is necessary to be satisfied and they are:

  • Whether the employer genuinely believes that the employee lacks the competence for performing his task.

  • Whether there exists a reasonable ground for the above belief.

However, in present case it has been observed that, the pilot has committed only one offence, and his previous employment history was clean, but there were various grounds on the basis of which the employer can consider him incompetent to perform the task and the company also can not like to increase the further vicarious liability by employing him in case he can commit the mistake again. But on the other hand, it is also important that the employer needs to provide ample opportunity to explain his conduct.

As per the Employment Equality (Age) Regulations 2006, the employee cannot be dismissed unfairly by giving them a reason of age. So if an employer tries to depend upon retirement for the dismissal of the employee, it is important that he need to follow the regular procedures that have been set in the Age Regulations (Sargeant, 2006). In this case, the employer needs to inform the employee at least six months before the dismissal, the date on which the employer wants the employee to retire. Moreover, it is also the fact that the employee possesses all the right to make a request to the company to work beyond the age of retirement, and this can be referred to as the six month rule. Again the section 98 of the Employment Rights Act 1996 has also been amended for including a fair reason for dismissal in the context of retirement. So as with every other reason for dismissal, it remains the same case that the employer has to show to the Employment Tribunal the reason for the dismissal (Williams, 2008).

 It is important on the part of the employer to prove the fact that the dismissal has been based upon reasonable grounds under the S.98(1) i.e. the reason for being dismissed should be fair and transparent. After that the employer needs to emphasize upon S.98(4). It proves the fact that it need, to be tested whether the company has acted in a reasonable manner or unreasonable way while treating the real reason as sufficient evidence in the context of the dismissal of the employee. Again S.98 (4) (a) also carry forward a test of reasonableness and S.98(4)(b)  puts forward the fact that the test should be as per the statements found by equality and merit of the case  involved. The equity can be referred to as the natural justice, procedural fairness; the persona circumstances of the employee various other matters that are related to common sense and common justice (M. R. F., 1976).

From the Case of Market Investigations Ltd (MIL) vs. Minister of Social Security

On the other hand, S.98(4) put forward two tests that need to be satisfied and they are the reasonableness test under s.98(4)(a) and the second one is the equity test under s.97(4)(b). Again there are two general principles, but they are interconnected. The first principle is that for stating dismissal against an employer should be valid and reasonable. The dismissal taking place should be within a range to accuse the boss. The second principle is that while applying the test it is important for the tribunal that he do not substitute their standards of reasonableness taking into consideration the case of the employer, rather they should emphasize upon effectively applying the standards of the hypothetical, reasonable employer (O’Higgins, 1973).

It is observed that the judicial guidance as per the context of the given act and the usage of section 98 (4) of the Employment Rights Act 1996 regarding the dismissal of the employee by misconduct is very much well-known and in also well settled. The key principles are as follows:

While conducting a test to analyze the reasonableness of the decision for dismissing the employee, the tribunal is bound to take a decision that is fair for both the parties depending upon the reason the employer is stating. Again it also needs to be considered whether the employer has taken his actions within the as per the reasons cited against misconduct which is found to be guilty on the employee part under consideration (Dworaczek, 2006).

Again it is also not the same to say that the decision on the part of the employer regarding the dismissal of the employee can only take place for a reason that is justified on his part

The tribunal is not having the rights to judge whether the decision took too dismissal is correct or incorrect from the employer’s point of view.

No specific procedure has been laid down by the employment legislation that needs to be followed by the company while dismissing an employee. However, case laws have revealed the fact that the employer must have good reasons and the disciplinary procedures that need to be carried out in such a manner that it appears fair to the employee. However some general rules are as follows:

The relevant provisions of the agreement of the employment should be followed.

The employee should be informed regarding the problem, and a disciplinary action could be taken.

The employee should be provided the opportunity to hire a representative to be present at the conduct meeting

1. Dismissal

The employee should be given a chance to nearby his point of view.

The allegations on the employee should be investigated thoroughly and in an impartial manner (Kiely and Hor, 2008).

The employee should also be facilitated with a genuine opportunity to improve.

During the trial period, the employee can be provided a notice of dismissal.

The employees should be treated in an equal manner in the same circumstances.

If the employer decides to dismiss the employee through a fair dismissal procedure, he must be given a reasonable amount of notice to the employee.

References

Acas.org.uk, (2015). Fair and unfair dismissals | Acas advice and guidance | Acas. [online] Available at: https://www.acas.org.uk/index.aspx?articleid=4098 [Accessed 14 Jan. 2016].

Anthonygrant.com, (2014). Bad Language and the Law - :: Anthony Grant - Barrister ::. [online] Available at: https://www.anthonygrant.com/publications/35-pages/publications/53-bad-language-and-the-law.html [Accessed 14 Jan. 2016].

Cabrelli, D. (2010). Employment law. Harlow, England: Pearson Longman.

Dworaczek, M., 2006. Dismissal of employees. 3rd ed. Monticello, Ill.: Vance Bibliographies.

Eversheds, (2003). Case round up. Personnel Today. [online] Available at: https://www.personneltoday.com/hr/case-round-up-38/ [Accessed 14 Jan. 2016].

Gould, T. and Rubenstein, M. (2008). Unfair dismissal. London: LexixNexis Butterworths.

Gov.uk, (2014). Employment contracts - GOV.UK. [online] Available at: https://www.gov.uk/employment-contracts-and-conditions/contract-terms [Accessed 14 Jan. 2016].

Gov.uk, (2015). Dismissing staff - GOV.UK. [online] Available at: https://www.gov.uk/dismiss-staff/unfair-dismissals [Accessed 14 Jan. 2016].

Hmrc.gov.uk, (2015). Case Law: Market Investigations Ltd v Minister of Social  Security. [online] Available at: https://www.hmrc.gov.uk/manuals/esmmanual/esm7040.htm [Accessed 14 Jan. 2016].

Kiely, P. and Hor, J., 2008. Termination of employment.

Legislation.gov.uk, (2014). Employment Rights Act 1996. [online] Available at: https://www.legislation.gov.uk/ukpga/1996/18/section/94 [Accessed 14 Jan. 2016].

  1. R. F., 1976. UNFAIR DISMISSAL: Unfair dismissal and the common law of wrongful dismissal. Industrial Law Journal, 5(1), pp.107-110.

Mann, J., 2011. HR Update: Understanding fair dismissal. Nursery World, 2011(1).

O'HIGGINS, P., 1973. UNFAIR DISMISSAL: Constructive dismissal and unfair dismissal. Industrial Law Journal, 2(1), pp.238-239.

Richardson, B. (2001). Constructive dismissal: pursuing a claim for unfair dismissal. Nurs Residential Care, 3(12), pp.590-592.

Richardson, B., 2002. Fair reasons for dismissal: 1. Nurs Residential Care, 4(5), pp.234-236.

Richardson, B., 2002. Fair reasons for dismissal: 2. Nurs Residential Care, 4(6), pp.280-282.

Sargeant, M., 2006. The Employment Equality (Age) Regulations 2006: A Legitimisation of Age Discrimination in Employment. Industrial Law Journal, 35(3), pp.209-227.

Silverman, R. (2014). Former BBC director sues Marks & Spencer after wrongful arrest for meat theft. The Telegraph. [online] Available at: https://www.telegraph.co.uk/news/uknews/law-and-order/11214247/Former-BBC-director-sues-Marks-and-Spencer-after-wrongful-arrest-for-meat-theft.html [Accessed 14 Jan. 2016].

Thompsons.law.co.uk, (2005). An employee or a worker?. [online] Available at: https://www.thompsons.law.co.uk/ltext/l1520004.htm [Accessed 14 Jan. 2016].

Williams, P., 2008. Lerma, 1618: Dismissal or Retirement?. European History Quarterly, 19(3), pp.307-332.

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