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Unfair dismissal

Employees with one year's service and who satisfy the qualifying criteria are given the statutory right to complain to an Employment Tribunal if it is felt that there was unfair or unreasonable treatment by an employer. Dismissals can be seen as unfair when an employer has dismissed an employee even when job performances were carried out in a satisfactory manner or if an employer has not correctly followed the company or statutory dismissal process when dismissing an employee.

Automatic unfair dismissal

Some dismissals are deemed to be 'automatically unfair'. If an employee has been dismissed for any of the reasons stated below then the employee should be able to make a claim to the Employment Tribunal for unfair dismissal.

• Health and safety reasons
• Seeking a written statement of employment particulars
• For being a member of a trade union and involving yourself in trade union activities
• Being discriminated against because of your gender, race, disability, religion, sexual orientation or age
• Reasons connected to pregnancy and the pregnancy itself
• Seeking to enforce rights under the National Minimum Wage Act
• 'Whistle blowing'
• Seeking time off to look after dependants along with paternal, maternal and adoption leave
• Refusing to work on a Sunday
• Seeking time off for public duties such as jury service
• Seeking remuneration during suspension due to medical reasons
• Requesting flexible working arrangements
• Refusing to cancel an opt-out agreement
• Being transferred to another employer under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE)
• Taking action in connection with part-time workers' or fixed term workers' rights

An employee must however act quickly in seeking legal advice as to whether or not they have a claim for Unfair Dismissal, as the Employment Tribunal must be notified of the intention to bring a claim within 3 months of the date of termination of the contract.

Constructive dismissal

In short Constructive Dismissal is a resignation which is deemed a dismissal and occurs when an employee is forced to resign due to a fundamental breach of the contract of employment by the employer as a result of their conduct. There must however be a significant breach, the resignation must be related to the conduct and the employee must resign quickly, otherwise, the employer may argue that by staying, the employee has accepted the conduct and treatment.

Not every breach of contract will entitle an employee to resign and claim constructive dismissal and it is important to distinguish between merely unreasonable conduct and a significant or repudiatory breach. Obviously, the concept of Constructive Dismissal raises the question: what sort of conduct by the employer entitles the employee to resign and claim unfair dismissal? Examples of Constructive Dismissal are as follows:

• Harassment
• Victimisation
• Changing one's job content or status
• Humiliating employees
• Unwarranted demotion or disciplinary sanctions
• Unilateral variation in contract terms
• Deliberately withholding pay
• Demanding the employee undertakes a substantial transfer of location
• Suspension without pay where the contract does not allow
• Failure to provide a working environment which is reasonably suitable for the performance of duties
• Failure to investigate properly the possibility of finding alternative work for an employee is suffering from work related stress

We would need to investigate any alleged breach very carefully and much will depend upon the particular facts and contract of employment. Please feel free to contact us for further advice based upon your own circumstances.

Compensation for unfair dismissal

The main remedies available are as follows:

1. Reinstatement
This means to be put back in the same job on the same terms with compensation for losses between dismissal and reinstatement.

2. Re-engagement
This consists of returning the employee to a similar job with the same or associated employer. Also with compensation as above.

3. Compensation
There are two elements to any compensation payable which are assessed on very different grounds, namely the Basic Award and Compensatory Award. The Basic Award is calculated on length of service and an employee's age and provides a level of certainty whereas the Compensatory Award is based upon what is 'just and equitable' given the particular circumstances and may include the following: loss of wages, future loss of wages, loss of benefits, loss of pension rights, loss of statutory protection rights and manner of dismissal. Deductions may also be made from the overall award at the Tribunal's discretion.

Wrongful dismissal

This is a contractual right where if an employer dismisses an employee, acting in breach of his contractual or statutory obligations by failing to give the employee any notice, the employer is liable to the employee for damages caused by wrongful dismissal. Damages will be assessed in terms of what the employee would have received if they were dismissed in breach of contract or with less than the statutory minimum period of notice and if they have suffered loss as a result. One of the most common breaches is when an employer fails to give the proper notice period to the employee or an employee is dismissed without notice. An employer's failure to follow a contractual disciplinary procedure can also lead to a case of wrongful dismissal. There are circumstances however, where an employer can justify the dismissal of an employee without giving notice if the particular employee has committed a serious breach of contract such as theft.

Breach of contract

A contract of employment is a legal agreement which both employer and employee are bound by.' A breach happens when either the employer or the employee breaks one or more of the terms stated in the contract. Terms of a contract are not all written down. A breach could be for a verbally agreed term or an 'implied' term of contract as well as a written term. A fundamental breach of contract (or a repudiatory breach) is one that allows the aggrieved party to terminate the breached contract, in addition to permitting that party to sue for damages.

Compromise agreement

This is a legally binding agreement between an employer and an employee in which the employee receives a financial sum, which has been previously negotiated in exchange for agreeing that they will have no further claim against their employer as a result of a statutory obligation breach. There are a number of circumstances when such an agreement may be used, for example:

• Redundancy
• Mutual Agreement
• Dismissal
• Settle an Employment Tribunal claim

The purpose of the Agreement is to provide certainty and it is therefore important that the terms of the document are understood before agreeing to and signing the Agreement. It is actually a requirement of the Agreement that you have taken legal advice from an independent solicitor or a qualified trade union representative and in most cases the employer will pay or contribute towards your legal costs.

With this agreement, an employee waives statutory claims like unfair dismissal, discrimination or redundancy against their employer. The agreement however, will only be valid if it is in writing and the employee has received independent advice from a solicitor who has professional indemnity insurance.

Once the agreement is signed an employee will generally only be able to make three types of claim against the employer:

• 1. If the employer breaches the Agreement
• 2. Claims in respect of Personal Injury although the agreement may seek to specifically exclude claims in respect of injuries that you were already aware of at the time the agreement is signed.
• 3. Claims in respect of accrued pension rights.

Each agreement is required to be customised to meet the facts and circumstances of any particular case. It is impossible to adopt a universal approach when drafting a compromise agreement.

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