Fundamental Employment Laws
Having written this column for some time, I think it’s time to get back to basics; a much misused and maligned expression.
For a column about employment law, “basics” means articles about the laws which affect all employees and employers. So I thought I would deal with those laws which affect the majority of us who are employed. The gender reassignment regulations only affect about 3000 people at any one time so they will have to wait.
The big employment laws are unfair dismissal, wrongful dismissal, breach of contract, equal opportunities, sex, race, disability discrimination, equal pay and maternity.
Let’s start with unfair dismissal. Employees who have been employed for one year are protected from being unfairly dismissed. This does not mean that the employee cannot be dismissed. It means that an employee who has been employed for one year and who is then dismissed can make a claim to an Employment Tribunal for unfair dismissal.
The claim must be received by the Tribunal within 3 months of the employee’s dismissal. If you have been dismissed you should regard the three month deadline as being fixed. If you are one day, or indeed one minute, late in submitting your application the Tribunal may not hear your claim. Very simply, if you have been dismissed and want to make a claim do it straight away.
Your claim must be made using a standard form. This can be obtained from the Regional Office of the Employment Tribunals in Exeter or from the Employment Tribunals’ website. Your ex-employer then has 28 days in which to respond to your claim.
It is important for both the employee and employer to understand exactly what the Tribunal’s job is when hearing a claim of unfair dismissal.
On the basis that the employer does not deny that it sacked the employee, the employer has to do two main things to defend the claim successfully. Firstly, the employer must show that there was a good reason to terminate the employee’s contract. There are four main fair reasons for dismissal. One is that the employee behaved so badly that they deserved to lose their job. The bad behaviour can be a one-off serious incident provided it amounts to gross misconduct, such as fighting at work, stealing at work or seeking to defraud the employer. The bad behaviour could also be a series of events which, when added together, justify the decision; repeated lateness without any sensible explanation would fall into this category.
A second good reason would be that the employee is not capable of doing the job that he or she was employed to do. This can arise if the employee simply does not have the ability to do the job properly (despite help, training and support) or if the employee’s health is so bad that the employer cannot be expected to keep the job open any longer. In this regard there is a balancing act for the Tribunal to decide what is fair in terms of allowing the employee time to recover their health and the need for the employer to get the job done. The disability discrimination laws also have to be taken into account. Frequent short term absence also falls into the “capability” category. The issue in such cases is whether the employee is so unreliable that the employer was justified in terminating his or her employment.
Redundancy is another reason the employer can use to argue that the dismissal was fair.
Finally there is a sort of catch-all category of some other substantial reason. An example of this might be if the employee simply could not get on with his or her colleagues so that a normal working relationship ceased to exist.
Having established that there was a good reason to terminate the employee’s contract, the employer must also show that it followed a fair procedure. The starting point as to what is a fair procedure is to look at what procedures are provided for in the employee’s contract of employment or in the Company handbook, if there is one. If there are no written procedures then the statutory disciplinary procedures will apply.
The key elements of any fair procedure is that the employee should be invited to formal meetings knowing that his or her behaviour and or future with the employer is to be discussed.
The employee has a right to be accompanied by a work colleague or trade union representative (even if the employer does not recognise a trade union for collective bargaining purposes) at any meeting. The employer must listen to what the employee has to say. If the employer has already made his mind up about what is going to happen it will not be a fair procedure. Finally, the employee must always have a right of appeal against the employer’s decision, even if the employee’s job is redundant.
In the Employment Tribunal the ex-employee will have an opportunity, either personally or through his or her representative, to cross examine the employer’s witnesses. This is your opportunity to highlight the weaknesses in the defence. Careful and thorough preparation are important. Remember you need to show either that there was no good reason to sack you or that a fair procedure was not followed.
