Coursework Lecturer: Malika Mukimova

Unfair dismissal

The act of criticising an employee for exercising his or her rights inside the company is known as unfair dismissal. Employees are normally cautious to prevent incidents of unjust and unfair dismissal, but the remedies available in such circumstances are limited. The unfair dismissal design is governed by Part 10 of the Employment Act of 1996. Section 96 of the Employment Act 1996 provides the basic right: "the employee has the right not to be unfairly dismissed." The similarities to unfair dismissal can be seen by looking at the qualifying criteria, according to one commentary, the aggrieved party must be employed under a valid contract and must have been fired at the time the lawsuit was filed⁴. Although claims for wrongful termination can be brought in the courts within 6 years of the date of breach of contract⁵, claims for unfair dismissal must be brought in court within three months of the date of termination under section 111(1) ERA 1996. In contrast to wrongful termination proceedings, the employee has the burden of evidence in unfair dismissal cases. For dismissal to be fair, the employer must follow a certain procedure⁶. Section 34 of the Employment Act of 2002 introduced a new section 98A to the Employment Rights Act of 1996. If the employer has gone beyond the procedure, then the dismissal is automatically unfair⁷. Appendix 2 defines the fundamental criteria as follows:

1) The employer must describe the employee's claimed behavior, traits, or other factors that lead the employee to contemplate dismissal or disciplinary action.
2) The employee must always be invited to a meeting to discuss the matter prior to action being done.
3) The employee must be given a fair amount of time to deliberate about his or her answer.
4) The employer must explain its choice to the employee.
5) The employer shall provide the employee with the rights to appeal, as well as an invitation to the next session for this reason.
If it is established that the employee violated this policy, firing is deemed to be inherently unfair. Additionally, if the court determines that it is not unfair to the employer, an extra payment of four weeks salary will be made. Certain situations trigger an automatic unfair dismissal claim - regardless of whether the employee was employed during the one-year qualifying period. These instances include maternity rights claim for dismissal; a whistle-blower firing; accompanying employees to disciplinary hearings; union membership or activities; or filing a lawsuit against an employer for legal rights.

Unfair dismissal occurs when an Employment Tribunal determines that dismissal was not justified by a Statutory Reason or a genuine Redundancy scenario. Legal reason: Under Sections 94-107 of the Employment Rights Act (ERA) of 1976, these are:

a. Congenital incapacity - inability to do so. In Blackman v Post Office [1974] IRLR 46, NIRC, the employee consistently failed the test and was negligent. However, in Davison v Kent Meters [1975] IRLR 145 there was an expectation that the employer generally should train or give another job)
b. Prolonged illness. In Coulson v Felixstowe Dock and Rly Co [1975] IRLR 11, the court ruled that an employer should be sensitive to an employee's illness.
c. Wrongful conduct of the employee. In Morrish v Henlys (Folkestone) Ltd | [1973] EW Misc 1, the employee had the right to refuse to perform any unlawful assignment by the employer.
d. Other substantive reason. In Wilson v. Underhill, 131 S.W.2d 19, the employer satisfactorily proved a good business reason that necessitated the employee's termination.