ENDING THE CONTRACT
The objectives of this chapter are to:
- To provide a framework according to which the law concerned with unfair dismissal of employees would operate.
- To chalk out the big reasons which can cause a particular employer to dismiss the employees in a lawful manner.
- To provide an explanation to the theory of ‘reasonableness’ in cases where employees have got dismissed in an unfair manner and how significant the thing is.
- To give a review of the law of dismissals in accordance to capability of the employee and whether he or she is guilty of any kind of misbehavior or bad conduct.
- The things that are involved in the rule of constructive dismissal and rule of wrongful dismissal discussed here.
- Some of the latest trends in the practice of retirement also reviewed here.
In the previous chapter, you have come across situations in which the various employees of a company would call it a day in the workplace by giving the employers a notice. In this chapter it has been decided that discussions will be provided regarding what happens when a particular contract is ended by the company itself by giving different kinds of dismissals. These kinds of dismissal are done very commonly in the UK and there are simply millions of people who face this kind of predicaments.
There are of course some cases that show that the various employees are quite happy to leave the job. These cases are generally observed when the people are on the verge of retirement or are about to get a large sum of money, which is cited as a payment for redundancy. However more commonly you will find that the people getting dismissed are quite unhappy when the contract is ended.
If an employee feels that he or she has been treated in an unfair manner, they can decide to take up their case in front of tribunal which assesses the employment issues. Statistics show that in the between 5% and 10% of the different workers usually went for claiming these things.
If a person wins the case in front of the tribunal, then the person can of course ask to be reinstated to their position in the company. However most of the times, you will see that the people have asked to be paid a compensation amount. The amount which is received as compensation is most of the times not enough. If your luck is very good, then you can be paid a large amount of money too.
The outcome of the case may be anything. However you require paying off some money for the legal purposes. The employer fighting the case also has to shell out some money and the management of the company will lose precious time. The employers often look for out of court settlement in such cases.
This is because the reputation of a company as well as that of the company owner can get damaged by this kind of negative publicity and advertising. The employers look into what the laws have to say before dismissing out the various employees. If the laws are not known properly by the man, then there stands a risk of the owner being called in by the tribunal and then lose the case. Hence laws have a big say in the occurrence of different dismissals of employees.
You will see that in the United Kingdom, there is prevalence of three kinds of claims for dismissal of employees which can be brought forward to the tribunal. The different rights which have been established with improper or unjust dismissal of the employees had been established a long time ago.
If you are claiming to be dismissed wrongly, then it means that during the course of your dismissal, the terms that were agreed to, by the employer on course of hiring, have been breached in an improper manner. Speaking of constructive dismissal, it is said to happen when an employee is said to have broken the terms associated with her employment in the company.
According to the law, the employers are forbidden from dismissing their employees, by creating conditions that would force the person to submit his or her resignation letter. In the cases of unfair dismissal, this is extremely common nowadays; here the dismissal of the employee is simply not done in accordance to the Employment Rights Act, formulated in the year 1996.
You will see that the law which aims to prevent the dismissal of employees in an unfair manner was formulated in the year 1971. Ever since its inception, it has undergone lots of amendments. There have been lots of additions in these laws over the years.
The various outcomes of cases for which the laws were made, actually contributed in making the law more and more complex. However the basic principles on which the law is based on, have remain unchanged and is accepted by all. The latest of the big changes and amendments happening to the law was in the year 2004.
These changes were meant to bring about a reduction in the number of claims that were coming to the office of the tribunal. They provided both the employees as well as the employers with great incentives and they were asked to finish off different procedures of grievances as well as discipline at first.
With the help of these regulations, the place that law occupied, when it came to different dismissals having definite reasons but not having been carried off using a proper or complete procedure.
In most of the cases, it is seen that only those people can bring about a claim of unfair dismissal that has been in the service of their employer for one complete year. The period is counted from the day of joining of the person till the exact day of termination of contract of the person.
Actually this period of 12 months is the minimum amount of time that an employer can use to determine whether a particular employee is fit for the job or not. It is forbidden to release an employee before this period. The time limit was set for 2 years for a very long time until the year 1999. For bringing about a reduction in the amount of time, the government actually had to bring in 2.8 million more individuals under the law of unfair dismissal.
During the year 2004, the right of not being dismissed from the job in an unfair manner, was not at all available for those individuals who were more than 65 years old. This age was often termed as the normal age for retirement of the people in any job. It can be said that such restrictions, would be removed from the different job sectors or the age of retirement would be extended up to 70 or 75 years. Hence all kinds of discriminations based on age of people would be eradicated. All this was to come into effect from the month of October in the year 2006.
The qualification of a particular individual in a job can restrict the person from continuing that job. However if the reason for firing of the person is unfair in nature, then of course these restrictions would not apply. A claim for unfair removal has to be submitted to the tribunal office within three months of deadline. There are often circumstances, which will force you not to submit a claim before a particular deadline. All those applications, which have been got 3 months later are said to have got out of time.
The different officers present in the advisory and committee of reconciliation, often make their best efforts to help the involved parties agree to a settlement, before the case goes into the hands of the tribunal. All those papers of the different cases which have been submitted to the tribunal are initially sent to this committee in order to see if reconciliation is possible before the hearing at the Tribunal. Hence in many cases it has been seen that the parties sort out the problems between themselves and they are not required to attend the meetings or hearings.
When a claim for unfair dismissal takes place and it can be undoubtedly said that dismissal had taken place, then the tribunal asks two primary questions.
- State whether the reason for dismissal of the employee is a legitimate one or not?
- Answer whether the employer performed the act of dismissal in a fair and just manner or not?
If the answer to the first question came out to be an o, then the requirement for asking the next question does not even arises. The weight age of the different proofs presented before the tribunal actually shifts when he moves from addressing the first question to addressing the next one.
If the answer to the first question is a no, then the employee filing the complaint is a winner of the case. The owner has to present his case in a satisfactory manner to convince the tribune that the employee had been removed quite fairly. When the reasons for the actions are asked, then the load of the proof attains a neutral stature.
You have to take note of the various activities of your colleagues at the workplace as well as the activities of your own. You have to hence find out the behaviors which can cause the fair dismissal of people. You have to make a complete list of your different ideas and then and then cross check them with stuffs given in this particular chapter. Hence you will find out the number of ideas which are of the unfair type.
Automatically unfair reasons
There are some reasons for dismissal of employees, which have been deemed to be unfair in nature by the law itself. If the tribunal determines that the reason for dismissal of the employee was one of these reasons, then they would of course go in the favor of the employee, no matter what the circumstance seems to be.
Hence the employer would practically not be able to make any kind of defense and explain what caused the dismissal, which the tribunal may accept. Such cases are often observed in condition of discrimination, duration of working hours as well as the wages that these people make.
These topics have been discussed in details later on in the book. The cases of unfair dismissals have grown at a really high rate in the recent times. Different new rights for the people came to the fore, through the statue book in the year 2004 and included the following unfair dismissals:
- Dismissal cannot take place on basis of sex of the person, the marital status of the person.
- It cannot take place in accordance to the race to which the person belongs to.
- The person cannot be dismissed due to some physical disability.
- The religious belief of the person cannot dismiss him.
- The sexual orientation of the person cannot take away his or her job.
- If the person had committed a crime earlier and has spent his time in conviction, then he cannot be dismissed on basis of such criminal record.
- If a person achieves pregnancy or motherhood, then that cannot be an excuse for dismissal.
- A person cannot be dismissed just because he is not a permanent worker at the office.
- A person is not dismissed if he has taken a leave for some emergency.
- A person can do the duties of a trustee or safe keeper and not be dismissed from the job because of it.
- A person has the right not to work on Sundays and cannot be dismissed form work due to it.
- Union activities in companies are completely legal and a person cannot be dismissed for taking part in those.
- If an industrial action is undertaken, then a person can definitely take part in it and not be dismissed from the job.
- An employee has the full right to not work in adverse conditions and not be removed from the job as a result of it.
- The employee can exercise all of his or her rights and not be removed from the job because of it.
This kind of provision is usually brought into effect to ensure that no person is treated unfairly according to the statue of the law. No person would fall a victim to wrong dismissal by the provision of this kind of law. The people are always welcome to exercise their rights.
- Employment Act 2002
- Employment Relations Act 1999
- Tax Credits Act 1999
- Working Time Regulations 1998
- Employment Rights Act 1996
- Trade Union and Labour Relations (Consolidation) Act 1992
- The Acts that have been covered have been listed here:
- Public Interest Disclosure Act 1998 (often known as the ‘Whistleblowers’ Act’)
- National Minimum Wage Act 1998
There are some situations which have been labeled as being unfair in an automatic fashion. This happens in situations when a particular business is changing hands and the ownership is being transferred.
The various dismissals, can be termed as unfair in nature, by the tribunal, the reverse can happen only if it is being shown by the company that the dismissal had happened strictly for reasons of economic importance or for reasons of technical nature.
There are lots of appeals for unfair dismissals all the time. However only those employees who have been working in the company for at least one year, can appeal against dismissal owing to change of ownerships, the people appealing also need to be at a proper age and not above the age of retirement.
According to the Dispute Resolution Regulations 2004, the government added a provision for situation which would become unfair after the end of one year of service at the company. A person can be dismissed in this case, without the starting of a three step process:
1 – The employer would be sending off a letter to the employee where the circumstances would be described that can cause the dismissal of the employee.
2 – The employer would send out invitations to the employees telling them to meet up and discuss various issues where the parties, would be speaking of their views regarding an issue. If dismissal occurs, then the employee has the right for appealing in a confirmed manner.
3 – The employee, would then be exercising his right for sending out an appeal and as a result of this, more meetings are held.
If some cases of gross misconducts have occurred, then the employers have the right to not go through the second step. However this will not be transforming the dismissal to be fair in nature. If the investigation is not carried forward in a proper manner, then a hearing would be held and further investigations would follow in order to ascertain if the dismissal was fair in nature.
Potentially fair reasons
An employer would want to content the tribunal in a proper manner, thus the reason for dismissal of the employee should be a fair one. Only if the tribunal has been satisfied by the first answer to the first question, can they progress to the second question which is about the reasonability. The fair manner of the dismissal of the employee is achieved in the following manner:
- If a particular employee, lack in certain qualifications or abilities then the person can be dismissed in a fair manner.
- If a person performs acts of misconduct, then the person can be dismissed for that. A person can do acts of misconduct by being disobedient, absent or engage in some criminal activities. Acts of misconduct can also include industrial actions.
- If the job of a person does not exist anymore, then it will be very much fair to get rid of such an employee.
- If certain employees are performing their duties by breaking the law, then they can of course be dismissed. In most of the cases it is seen that the employees are dismissed like this when they are drivers and are mostly embroiled in cases of over speeding or drink driving. There are also cases where the working licenses of foreign individuals have elapsed but they have stayed on.
- There are so many fair reasons or grounds owing to which the employees could be removed that the list is simply not exhaustive in nature. There are issues concerned with the security of the company or some kind of rebellion.
- Dismissals which occur owing to taking place of industrial actions after passage of a period of two months.
If the tribunal sees that there exists some fair ground for the dismissal of employees, then the tribunal decides whether the removal would be fair in nature considering the circumstances. There are 2 main questions that crop up at this juncture, whether the decision taken was in haste and whether the removal had been carried out in the in the way it is supposed to be.
When the first thing is considered, the different members pay a great deal of attention to the way the treatment went, for their own satisfaction of finding out, whether the particular employee had been treated in a manner which was more severe than other cases. The size of the company and the kind of resources that the employer has is also something that needs consideration.
A large business house is often expected to have a large stash of things and a proper HR department than those business houses which are small in nature. The big business houses are expected to provide few warnings to the employees or some more amount of training before they are dismissed and labeled as incapable to work there. However in the small businesses, just giving one warning is good enough to ensure that person corrects himself or is fired.
The kind of significance that you will observe in these cases often varies. The variations have come with time, for example till the year of 1987, the various employers had the option of arguing against the dismissal, however thee procedure that was being used had some deficiencies but did not affect the final outcome.
Everything changed since the case of Polkey v. AE Dayton Services in the year of 1987, where the judgment was passed by the House of Lords. This case was a break from the usual ones, as the employer here had not contacted the employee before dismissing him nor had any notice been served.
When the judgment was being given, the Lord Mackay presiding over the proceedings argued that just because the person was not informed about the dismissal, it did not really have any kind of effect upon the final judgment. From then on, the different tribunals were instructed to find out about those dismissals where the employer had not informed the person to be dismissed.
Some of the problems in the law that have been identified have been presented here by Earnshaw and include:
- Providing no chance to the employee to submit any kind of explanation for the act.
- Dismissing the person without giving any sort of hearing by the disciplinary committee.
- The absence of proper procedures in those cases where senior members of the staff is involved.
- The absence of proper procedure just because people of desire to not be quite formal.
- No chance being provided to the complainant to correct the deficiencies that he has.
The resolution for providing regulations to the different disputes came out in the year 2004. This was done to override the judgment that was given in the controversial case of the Polkey. The different practices which are present commonly, as the tribunals keep considering cases from time to time. In accordance to the provisions from the year 2004, the government had many measures to explain and they are:
Bringing about a change in the way the different cases of unfair dismissals are judged throughout the country. The idea is to maintain some standard as the different people seek justice in the hands of the law. Different inadequacies present in the law has to be got rid of. The various employers always need to follow some procedures which go hand in hand with the law. These people would not be penalized for making uncommon mistakes. The court needs to ensure that the dismissal that has been met out is very much fair in nature.
The procedure being used by the tribunals to reach a particular decision is that the employer, who has dismissed the person, has done so in a fair manner. The various members of the tribunal, do not judge the cases in accordance to what they could have done if they were in the place of the accused employer or what best kind of employer would have done. The judges have to consult among themselves and decide whether the employer in question, did, what can be termed as fair considering the circumstances at that point of time. Hence it can of course be concluded that the proprietor can go scot free if he can prove that the decision to remove the employee, was not taken in haste or spite, but conceived in a planned manner.
In this particular book you will find that a separation has been made between the acts of consideration of discipline and that of dismissal. This has been done to focus more on the cases of discipline. Hence things are made right. In general practice, the two things cannot be distinctly separated. Hence the issue of dismissal needs to be viewed according to the materials present in the 25th chapter of this book.
WINDOW ON PRACTICE
It was in the year 1999 that the Tribunal for the employment made one of the epoch making decisions on course of the case of Haddon v. Van den Bergh Foods, which got overturned a few months later. In this case, it was seen that Haddon had been dismissed due to some really unexpected and extraordinary circumstances.
He was dismissed when he could not go to work as he had to attend a particular ceremony where he was given a special award for the long time in service. He decided not to go through the last few hours left for his shift and instead decided to call it a day. This was very much against the workplace culture present in the company and hence he was fired. The case was of course brought in front of the employment tribunal.
The tribunal decided that the decision was harsh of course but a fair one as it was within the rules of the company. He finally appealed again and this time the decision was reversed. It was decided that the tribunal would go through the case again to decide whether the employer’s actions was reasonable in nature or not.
The opinion of the bench was also taken into account .This kind of new rule stood in place for a few months and was used extensively by the tribunal to pass the judgment. Hence decisions went in the favor of many employees; the percentage had gone up considerably from that of previous years.
In the month of March in 2000, this new ruling got overturned again as a new chairman had come. It was decided that a place such as House of the Lords could overturn a particular decision of the tribunal.
Lack of capability or qualifications
The capability of an employee is judged according to the skill level of the person as well as the aptitude that the person possesses. The different employees have the complete right to judge whether a particular person is suitable enough for the job or not, before the person is selected.
According to the law, different mistakes can occur when choosing the individual; it is then that the individual can be dismissed to correct the error in selection. In order to ensure that the dismissal is quite fair in nature, the employee has to be given a warning, as the person has been already selected, so he or she must also be given an opportunity to improve upon themselves.
There are some check questions that need to be asked to the employee during the time his or her job has ended and he or she is said to be on probation. These questions can include:
- It has to be ascertained whether the employer has taken a good number of steps to ensure evaluation of the probationer has taken place properly.
- The person should have been provided some guidance in terms of either advice or warning to ensure that the person has been guided in a proper manner.
- It has to be ascertained whether an eligible person made proper assessment to determine that all the facts recorded from the ex-employee were true or proper in nature.
The employer always has to ensure that that the employee is not suitable for the company by producing proofs. The evidence of this type must never be underestimated, as it will only bolster the case for the employer. Showing that an employee lacks in certain attributes is a really good way to ensure that he is shown the door.
The employer should not be ignoring it for a certain period of time and keeping the person in employment. Usually you will see that there would be good number of chances to file a case & ensure that the dismissal takes place in a fair manner. The employer can also consider giving the person another job before completely dismissing him.
In order to ascertain that a person is suitable for a particular job, the qualifications of the person have to be checked. The person must have the required qualifications in form of degrees, papers to get into the job.
The most common case which is brought up is that of misinterpretation of stuffs. In these cases, the person would claim to have certain qualifications which she or he actually doesn’t have, in order to have the job. There are also some situations, when the employee is unable to get certain qualifications.
WINDOW ON PRACTICE
In the case of Al-Tikriti v. South Western RHA in the year 1986, is quite famous for bringing into focus a ruling in favor of the employers. AL Tikriti was a registrar at the South Western RHA. According to the rules of the organization, the person was allowed to appear for the examinations a maximum of three times and then he would be eligible for the post.
This doctor had failed in his 3rd attempt, and had filed a case that the training he received was not enough to pass the examination. Hence the dismissal of the person was not deemed to be fair. However after investigation, the tribunal found removal to be fair in nature.
The capability of the employee is also determined by his or her health. It is quite unfair to dismiss the people on the basis of their poor health, which would prevent the employee from discharging his or her duties.
The cruelest of dismissals would be deemed to be fair in nature, if the decision has not been taken out of haste and if chances for alternative form of employment exists in the organization. The different employers are hereby asked to accept any kind of medical advices which is offered to them for their company, before they set about dismissing a person.
The various companies which themselves have health services, have easy access to the various medical reports. These documents would help in bringing in the justice. The different medical evidences got, have to be considered quite carefully. However the dismissal of the person would stay to be a decision of the employer rather than the doctors.
The person has to be absent from work for a prolonged period of time in order to ensure that the dismissal is taking place. If the absence even if not too much prolonged, interferes with the way the business is run, can cause the dismissal of a particular employee. The employee has to be of course consulted before any decision is taken regarding dismissal.
The organization of EAT has put down some questions that need to be asked before dismissing the person for having a lasting illness.
- State the period of employment in the company.
- State how long you expected your job to last.
- What kind of job was you required to do?
- What kind of illness did you have and how long did it last?
- Why does the employer require only you to finish the job and not have some temporary replacement?
- State whether the employer would be having some obligations when it came to making payments or even some compensation for dismissing the employee in an unfair manner.
- Have you continued receiving your wages during this period?
- Why were you dismissed by the employer?
- Under similar circumstances, do you believe a more understanding employer would have waited longer for you?
Cases have been built around the difficulties that people faced regarding their job contract. In different hearings of the tribunal, the decision which is being taken has to be according to the situation in hand. The employee cannot be dismissed in accordance to a model stated in a book. Hence the above questions can only serve as a guide for you. They are of course not the absolute law in these situations.
A completely different situation would arise if it is found that a worker is being absent consistently for short periods of time. The employees in these cases can be dismissed after their illness is considered properly; the employer has to also ensure that the employee gets warnings regarding dismissal if the attendance record of the person shows no kind of improvement.
Duggan has made it really clear that the different cases would be decided upon according to its merit. If required, the medical evidences are needed to be brought out and a decision be made regarding what kind of frequency of absenting would continue in the coming days of employment.
If a particular employee is completely fit during the dismissal, it does not necessarily mean that the dismissal is fair in nature. The complete record for attendance is to be checked and what kind of impact it would have upon the functioning of the company needs to be determined.
In a famous case of dismissal that is International Sports Ltd v. Thomson from the year 1980, it is seen that a particular employee was dismissed from the job, for making a series of absenting in the company for different reasons ranging from anxiety to bronchitis. These things were of course covered under medical note.
This particular man was given several warnings and after consultation with the medical advisors of the company, it was decided to dismiss the employee. No reason was found for thorough checkup by the company itself, as the listed ailments were not connected in nature and of course not deadly.
The Tribunal also said that the dismissal was a proper one as lots of warnings had already been given. Attendance record of the employee was also quite bad in nature and hence was not taken up for reviewing. Other courts of law also accepted this judgment to be a fair one.
Passing of the Disability Discrimination Act in the year 1995, affected the laws present for individuals with poor health considerably. You will find more information about this in the chapter number 23.
You will find it imperative to show that it is not in accordance to the law if a person is dismissed from the job for being disabled in nature, if no considerations are made regarding bringing about adjustments to the environment where the person works to make it suitable for the person.
The adjustments which are being spoken over here may include tolerance of the absence of employees in cases where the company is really big and would be doing perfectly fine even with the absence of this one employee. The various employers are always told to listen to the criteria for allowing discrimination based on disability. If the employer is found to be guilty, then he can be made to pay really great amounts of compensations.
WINDOW ON PRACTICE
It was in the year 1998, that Kirker, a person suffering from poor vision was asked to leave his job by the people at British Sugar Company. The criteria for selection of the person for the job were actually based on the amount of competence and working potential that the person had. The company deemed him unfit owing to his illness.
The case was given to the Tribunal for judgment. It was concluded that people had dismissed the man for being visually impaired. If the person had not been partially blind, then he could have been easily retained. There are simply no limits when it comes to getting a certain amount as compensation.
A particular estimate can be prepared stating the financial loss that the concerned employee has suffered from. For example in this very case, the Company had to shell out £103,146.
According to the law, two different types of misconducts are present and differentiation is required to be made between the two things:
- Cases of ordinary misconducts would be involving less amount of offences. Acts of offences would be minor in nature and the people would be involved in disobeying the company as well as lacking in punctuality and showing a rude and forgetful behavior. In cases such as this one, it would be unfair and unjust for the employer to act against the person after just one offence. At least one warning needs to be issued before and he will only get dismissed if there is no improvement in the behavior of the person.
- In cases of gross misconduct, the employee would have committed offences which were serious enough to ensure a dismissal. In order to ensure that his happened, the person has to break away from a term in the contract or from one of the duties that an employee owes to the company, which you will see in chapter 4.
The employers have their own choices regarding what to consider an offence of gross misconduct. The offences vary from one place to the next. The act of smoking in the office would be considered to be ordinary misconduct if it is done in rooms having signs of no smoking.
The same offense would become gross in nature if the smoking was being done in the factory near the making of different combustible materials. It all depends upon circumstances. Tribunals also look into what kind of policies the employer himself follows regarding judging the conduct of people.
When you find that the different disciplinary rules literally spell out the kind of conduct of the employee which would result in a dismissal, then the dismissals can be deemed to be fair in nature. Similarly if rules of the company do not clearly states about behavior that can result in expulsion, then the dismissal as a result of one offense is very much unfair in nature.
Hence the different workers can of course state about their demands regarding the kind of conduct they would indulge in and what kind of conduct is regarded as a template for sacking. All the employees have to be aware of these rules.
In the different cases of misconduct, the next important principle is that of procedure to be followed. It is to be known whether a person has been dismissed at once for gross misbehavior or for repeated offenses of misconducts of ordinary nature. The tribunal will investigate to find that the right procedures have been used.
The main requirement is not quite affected by the DRR of 2004. It tells that the various employers have to stick to the most basic of procedures. There are certain regulations, which allow the employers to do away with requirement for disciplinary hearings to take place in cases where the gross misconduct is of extreme type.
These disciplinary procedures can be found in details in the 25th chapter. The major questions which would be asked by the tribunal when these cases arise have been listed here:
- State whether the accusations were investigated in a thorough and instant manner by the different managers before a decision of dismissal was reached or a warning was issued.
- Did a hearing take place formally, where the employee could come up and state his case and defend against the accusations brought about by the manager?
- Did the accused employee have a chance to be at the hearing by being beside a representative of the trade union?
- State whether the treatment of the employee was as good as those of the other employees booked before for similar offenses.
If responses to all the above questions are a yes, then the tribunal will state that a fair dismissal had taken place. The tribunal of course does not consider the employers to be capable enough to produce great quality evidence like the people who have been embroiled in the police investigation of crimes.
Throughout the entire employment law, employer has the duty to act very reasonably, no matter what the circumstance is. The people have to abide by the various principles present in the justice. They require doing things which they would think ought to be done because of the facts presented in the case.
If a particular employee is found to be guilty by hearing at the court, then the fair dismissal is not justified automatically. The dismissal will of course be fair and within reason. If the person has committed an act of theft during the off duty hours and quite away from workforce, does not really allow a dismissal.
The kind of work that the employee is ding, determines everything. The staff member of finance for example is dismissed if they perform a theft of money elsewhere as there would always arise a trust issue.
The evidences, which wouldn’t be good enough to bring a person into prosecution, may actually be good to cause the dismissal of such a problem. If the person has been regularly committing the offenses, they can definitely be dismissed. The various convictions due to offenses related to drugs or euphemism will not be taken into consideration for dismissal, if it does not have any effect on work being done by person.
If a person is acting as an instructor, then the dismissal can be considered in these cases. However, in all other kinds of unemployment this practice is quite fair. It is not quite fair to suspend or terminate driving license of the person for any kind of offenses.
WINDOW ON PRACTICE
You will notice that in the previous years, the different tribunals had to experience a case of dismissal. Here the different people have got suspended, for firstly downloading porn films and then keeping them in their own devices, usually by use of the internet. It is for the tribunals to decide if the action resulted in gross misconduct which eventually leads to dismissal of the person without any notice from beforehand.
It can also considered to be ordinary offense and the dismissal for the first type would be deemed as unfair in nature. Different cases have had different outcomes over time and they were decided according to how clear the various rules of laid down here are. In the Parr v. Derwent side District Council in the year 1998, Mr. Parr was dismissed from the job after being caught by the others to be watching the porn film by use of the office computer.
The person of course has said that she had gone to the particular site because of a mistake of his own. He had stayed on there for a while and again visited it as he thought that the children could gain access to it in a really easy manner. The claim of the person for unfair sacking from work, had failed as employers of the man had used completely legal means to nail him. The person had also broken certain rules of conduct.
In the case of Dunn v. IBM UK Ltd in 1998, a dismissal of similar kind occurred and was deemed to be out of the list for reasonable type of dismissal. For this particular case, the various employers had actually performed great investigations and not form a council for hearing things. The entire chain of matter was handled very fast.
There was actually no policy mentioned in the company which forbade the user from accessing to the porn websites. Hence the person claimed innocence about not being able to find out why he was charged with such kind of offence. The person here actually won this case of his unfair dismissal but the compensations were reduced by many thousands as he was quite responsible for his dismissal from the post.
In the case of the Humphries v. VH Barnett & Co, a tribunal had given the order that viewing normal pornography in the premise of the office would not be treated as a case of gross misconduct.
Exclusion will be in those places where policies had been framed which prevented employees from watching the porn and was treated as a rule in the workplace. In this particular case however it was seen that Mr Humphries had really done acts of gross misbehavior as the pictures in his possession was of extremely bad taste.
If people are dismissed being redundant, then protection can be got in unfair treatment of the people. The people also have right to get some consultation during the period of the redundancy. The employee, who has been facing the situation of redundancy, can get protection in form of some compensation. The compensation can be got if the dismissal of the person is generally attributed to:
- If the particular employer says that he does not wish to continue with his business any longer. He can also say that the purpose for which the person had been employed previously ceases to exist.
- There has been a change in requirements of the business. Hence there is no point in keeping a particular employee.
Other than certain special groups of people, all those people who have been in employment for at least two years, is entitled to have a payment of compensation from the employer, if he or she is removed from the job by virtue of termination. The compensation to be provided is actually calculated in accordance to a sliding scale where different factors are put for consideration.
The factors include, the period of time for which the person has been working, age of the person as well as the amount of money that he or she is making on a weekly basis. If a particular employer does not wish to pay compensation, then he has to state a reason for dismissal other than termination.
The incorporation of the age factor while calculating the compensation is likely to be scrapped with the coming of a law that would end discrimination based on age of the people.
There are certain law based rights concerned with redundancy that have not undergone changes for the past three decades or so. The interpretation of these things have been in consistence and problematic. It was in the year 1999, that the House of the lords had to intervene and provide with clarifications regarding some of the main problems in the case of Murray et al. v. Foyle Meats Ltd.
It was unequivocal here that the tribunals would be looking into the things going on in the life of the people instead of what has been stated in the books of law. When doing this, it was seen that bumping, could be accepted by some people. In the case of bumping, it was seen that the employer, would be dismissing a particular individual whose job tenure is not over yet and is employing another person instead. The different questions asked by the EAT, is now what the tribunal asks in cases of bumping:
- State whether the employee has been dismissed completely.
- Has a reduction in the number of jobs has taken place in the company itself?
- State if the sacking that has taken place.
The employer has to undertake some discussions with the employee before dismissing him or her. The consultation can also take place with a particular trade union. If no union is present, then the discussion can take place with some other representative. If it is seen that more than 20 employees are getting dismissed on grounds of redundancy. Then written notices have to be forwarded to the respective unions or Trade department, a month before dismissing one of the employees.
If 100 people are to be dismissed on redundancy, then a period of 90 days has to be given to them in form of a notice, stating that they would be dismissed. The employers have no responsibility to be speaking to the employees and entering into negotiations. They can listen to the words of the employees and answer them accordingly. The various workers also have a right to be on leave during this period in order to look for new work.
It is one of the toughest properties associated with redundancy is that it is hard to decide who should be going out first. The approach which has been followed for all these years is such that the people who have joined last would be leaving first. This kind of approach is very effective in nature and most people do not argue with it.
In the present times, however an approach is being used where the skill level of the person as well as his competence at the job is judged before dismissal. In another approach, a structure for organization during the period post redundancy is devised and all the people are asked to apply for jobs that would be remaining. By the law, all the different approaches can be accepted and they can be carried out with ease.
The various employers are always making efforts to cancel out the redundancy by use of various strategies. It can be avoided by not really finding replacement for people who go out, take retirement early. The redundancies that have been taking place largely, have brought on lots of activities for the managers and lessen the activity of the redundancy. Counseling for redundancy, has been a really effective practice for quite some time now. This kind of counseling is often done by HR department too. There are some organizations, which even makes use of the services from outside to ensure everything is well. There are absolutely no legal requirements to carry on with these activities of dismissals.
Some other substantial reason
The law for the unfair dismissal has undergone a lot of evolution since the year 1971. There is a particular area which has remained quite controversial. Different commentators have to say that this is something to be grabbed entirely or not take anything at all. Lots of cases have been solved in this fashion.
The varieties in the cases include the one where people have been dismissed owing to occurrences of fights based on personality. There have also been cases where the customers have given pressure on the company to dismiss certain subordinates. The people can be dismissed for revealing some secrets of the company. In some cases, the person can be dismissed if his or her spouse was working for a competing firm.
Most of the cases that are brought about here happen because some restructuring had happened in the business. These things are often seen to take place when one employer would wish to change the conditions and terms present in the employment.
Often it is seen that a person is getting dismissed in one case and then again getting employment in the same case with different conditions for employment. The dismissal of this type is quite correct fair and the reason for dismissing is in accordance to the business. Before reorganization takes place, it is mandatory to take the consultation of others.
You should know that the tribunal would not be making its judgment in accordance to what the employee has done, whether he has refused to agree by the new conditions and terms. The employer needs to convince the tribune that the changes that will be brought in will place the company in a position of advantage.
Links of Previous Main Topic:-
- The nature of human resource management
- Strategic human resource management
- Planning jobs and people
- Strategic aspects of resourcing
- Contractors and their contracts with consultants
- Selection methods and decisions
- Staff retention
Links of Next HR Management Topics:-
- Written statement reasons
- Constructive dismissal
- Compensation for dismissal
- Wrongful dismissal
- Notice in ending the contract
- Summary propositions ending the contract
- General discussion topics ending the contract
- Reading contract ending the contract
- Interactive skill 2 selection interviewing
- Practical exercise in selection interviewing
- Review part ii
- Part ii case study problem