Dismissal – A game of two halves

Dismissal – A Game of two halves

Lets get straight to the point, an Employer can dismiss an employee if a. he/she’s guilty of misconduct e.g dishonesty, Racial abuse, Sexual abuse, Gross breach of Trust; b. other less serious but substantial breaches of Contract e.g Poor work output/quality, attendance etc; c. Incapability of the employee to do the job he's employed for; d. Business expediency. In addition there can be a dismissal on the basis of Redundancy i.e a genuine redundancy situation- as opposed to a ham-fisted contrivance targeted at getting rid of a pesky employee.

This isn’t rocket science, its an employers right under the Law, however there are rules for these things like everything else. The employee has a right to be heard at a meeting, in respect of the allegations made and an opportunity to state his side, prior to dismissal. He equally has a right to be accompanied by either a Union Rep or a Friend to any such hearing, but not to be represented by a Solicitor. It is equally important that the hearing is presided over by a person or persons distinct from the Individual(s) who have made the complaint against the Employee otherwise bias may be inferred. A rehash of the rules for this a. Inform the employee clearly of all the allegations against him/her and make available all material you rely on, b. Ensure an impartial panel at the earing and; c. At the hearing, the employee should be allowed all reasonable opportunity to state his side and be accompanied if he wishes.

Now when is Dismissal Unfair? In an infinite number of circumstances based on the specific facts, however the common sense heading would be when the Employee has not breached his Contract, has not been guilty of misconduct, where the proper disciplinary procedure has not been followed, where there is no genuine redundancy situation and where the Employer has fundamentally breached a contract whereby an employee is entitled to treat himself as having been dismissed (Constructive Unfair Dismissal)- simple. The facts are often intricately different and it is often a matter for the Employment Tribunal to determine after hearing evidence from both sides. Its absolutely important to make clear that to bring a Claim for Unfair Dismissal, you have to have been employed continuously for at least a year. If you have not spent up to a year, then the only claim you are entitled to bring is for Wrongful dismissal of which the remedy is Notice pay and no more.

However in a majority of cases, a sober eye can usually tell where the pendulum is swinging and its no coincidence that majority of claims are settled before a Claim is either filed or heard by the Employment Tribunal, either by the parties or with the help of ACAS- the Governments Independent Arbitration service (who in my view are half-asleep most of the time, but often have the rare dedicated Officer, who will actually push a settlement- usually female). The prospects of settlement usually require a consideration of a realistic and commercial view of the cost vs. benefits of heading to the Tribuna. The Employer will usually employ a Firm of Solicitors and a Barrister over a minimum of one, two, three or even seven days- not counting preparation time, with average costs of £5000-£15,000.00 or more, depending on the complexity. Common sense usually dictates paying the guy £2000.00 after some hard-nosed bargaining if that’s all he wants rather than spend all that money and have key managers out of the office for days.

Unlike the Courts, costs aren’t generally recoverable at the Employment Tribunal, unless a party has behaved unreasonably or irrationally, e.g bring a Claim for £100,000.00 because the Boss got rid of the Drinks dispenser, or where an Employer has been patently unreasonable in dismissing or indeed maltreating an employee and then refuses to explore settlement. I need to mention however that the power of the Tribunal to award costs has been expanded of recent and its also necessary to mention that the Tribunal whilst conceived as a simple, self help forum for employees to seek justice has increasingly become bogged down by procedure and red-tape and in some instances actually outstrips the County Court for formality- another reason to avoid it if you can.

A word for the Employee at this stage- If in doubt get advice from your Union, a Solicitor or CAB at the earliest opportunity there are strict steps you must follow, which may be laid down in your Employee Handbook or which are contained in Employment Statutes, for which you will need help in interpreting. Do not take anything for granted. Most importantly, take all reasonable steps provided either by the Employee’s Handbook or by commonsense, to seek a resolution of all matters, however never admit anything you are not sure of or take any steps which may legitimise any wrong action taken against you by your Employer. It is impossible to provide an exhaustive list of these, hence advice is crucial.

The most important piece of advice being after having explored all these avenues, make sure your Claim is filed three months less one day after you were dismissed. What this means plainly is if you were fired on Friday 19^th May, make sure your application is filed on Friday 18^th August at the very latest, my candid advice is that you file it before 4pm, do this by Fax it’s the most reliable. After faxing, call the Tribunal and ask the staff if they’ve received it, when in doubt send it again, they may hate you for sending a thousand copies, but at least the Tribunal will hear your claim. The time limits are extremely strict and the Employer will happily exploit this. The Tribunal will very rarely extend time, even if your were very ill beforehand, once you had an opportunity to do so within time and didn’t, it will weigh against you, even though your claim is super-strong.

Its also necessary to mention that if you haven’t quite gotten your claim ready as the time limit approaches, file the Claim anyway, including every conceivable claim you may have (a holding or omnibus claim), this being because you are allowed to amend later and file a proper and complete Claim. However you may wish -out of courtesy- to have a word with the other side and make clear why you had to file in that manner and agree that they be given additional time to respond to your Claim, whenever you perfect it.

I also need to mention that being a Claim under contract, you may bring the Claim in the High Court where the Claim is especially complex and the amount claimed is large.

What to Claim: Majority of Claims under Unfair Dismissal are for money, however you may ask to be re-instated, though the employer is not bound to take you back, then you can ask for money. The money claim comes under two heads – a. The basic and; b. The Compensatory award. The Basic award is indexed to the numbers of years you’ve worked x £250.00 for each year, the Compensatory award is based on the loss of earnings which you shall face e.g on an income of £3000.00 a year, if you anticipate that you are unlikely to ever find work until retirement age and you’re 50, its likely to be 10 x £3000.00 - £30,000.00. The limit of compensation is £50,000.00, unless there’s a Claim for Sex, Race or Disability discrimination, where there’s no limit. Basically, you can’t simply put in any old figure you like in the Claim Form because you want to “hit the bugger where it hurts” (I’d actually leave that to his Lawyers, believe me they never lose). Bear in mind the actual amount you're entitled to, may be reduced under the following circumstances- a. Polkey Deductions- Where the Employer might have dismissed you anyway for good reason e.g Long term sickness; b. Failure to mitigate loss- You are required after dismissal, to actively look for work, as opposed to sitting on you haunches waiting for a settlement, failure to look for work and present evidence of actual Job search may result in a reduction of the award.

The Hearing
The hearing usually takes place before a Panel of three consisting of a Qualified Solicitor or Barrister as Chairman and two non-Lawyer members, one an Employer and the other an Employee member (a fine balance).

The Employer usually calls his witnesses first, examines them (asks them questions based on the facts you rely on for your claim) in a bid to disprove your claim, you then have a chance to cross-examine; basically to challenge the answers the Employers witnesses have given. You can ask pretty much anything in cross-examination, however you may not call the witness a twit or a blithering Idiot or any other form of abuse for that matter and your questions should be relevant to the issues or at least relevant to proving that the witness is a bare-faced liar- in a subtle way of course. They may want to re-examine the witness to straighten out any ambiguous or problem points arising from cross-examination, no new evidence is allowed at this stage.

You then call your witnesses and whilst questioning, you should not lead them i.e direct them to an answer, you should keep your questions relevant and most importantly short and effective. Hearsay evidence is allowed, but less weight is placed on it. The Tribunal will usually ask its own questions of the witnesses to clarify points, try and restrain yourself at this stage they haven’t taken a position and just want to establish points that may have been missed.

After the witnesses are called, then submissions or arguments are heard from both sides as to why they should win, you summarise your facts and repeat relevant points raised in the evidence in your favour and try and explain points raised against you. If you have any knowledge of relevant laws, make your points at this stage (if you don’t, then you should have bloody well gotten advice first). The Tribunal will then close the session and subsequently deliberate on the evidence and arguments and invite the parties back for a decision or post the decision to you in writing.

Appeal: If it goes against you, you have 42 days to appeal to the Employment Appeal Tribunal. You have to file a Notice of Appeal (a special form) and attach your Grounds of Appeal. Basically, your grounds must be based on the fact that the Employment Tribunal has made a mistake in Law or applied the facts so terribly wrongly as to amount to an error of Law. If permission to appeal is granted, then its heard over one day in front of the same type of Panel at the Tribunal and a decision is usually given on the same day- read out in Court.

Moral of the story- Employment Tribunal disputes are extremely stressful, time-consuming and expensive- avoid them if you can. If you can’t , then seek the earliest and best opportunity to settle or accept a settlement if it makes financial sense. If not possible, then get proper advice and prepare adequately, it’s a battle believe me.