BCR Explores Law – Unfair Dismissal

Unfair dismissal is a complex area of employment law, but one that every employer should understand. A failure to understand this area of law can result in employers being taken to an Employment Tribunal and ultimately having to pay compensation.

What is unfair dismissal?

Typically a dismissal occurs when an employee’s contract of employment is terminated by their employer. A dismissal will normally be considered fair if the employer can show that the principal reason for the dismissal related to:

1. the capability or qualifications of the employee;
2. the conduct of the employee;
3. the employee was required to retire;
4. that the employee was redundant;
5. the continuation of the employee’s employment would contravene a duty or restriction imposed by law (whether on the part of the employee or the employer); or
6. some other substantial reason that would justify the dismissal (and that the employer had acted reasonably in doing so).

If the reason for dismissal does not fall within one of the above categories, the dismissal could potentially be considered unfair. The key thing to note is that even where an employer has grounds to dismiss an employee, that it follows a fair process. This would include, for example, ensuring that an employer’s disciplinary policy is followed.

What is Automatic Unfair Dismissal?

Automatic unfair dismissal is a term used to describe certain situations where an employee is dismissed for a specific reason which is protected by legislation. These situations include dismissals relating to:

1. trade union activities;
2. asserting a statutory right;
3. asking to be paid the minimum wage;
4. an act of discrimination under the Discrimination (Jersey) Law 2013;
5. is being dismissed on grounds of pregnancy or family reasons.

If an employment tribunal finds a dismissal to be automatically unfair then an employer will be unable to defend the claim and the employee will automatically succeed in their claim which could result in the employer having to: (1) reinstate the employee; (2) re-engage the employee; or (3) pay the employee compensation (or a combination of these).

Who can bring a claim for unfair dismissal and what are the time limits for lodging a claim of this nature?

An employee who believes that they have been unfairly dismissed must bring lodge their claim with the Employment Tribunal within 8 weeks minus one day from the date of termination of their employment. Unfair dismissal protection only applies if the employee has worked for 52 weeks for the employer at the date of dismissal, unless it is an automatic unfair dismissal (see above) when no qualifying period applies.

What are the potential financial awards for Unfair Dismissal?

If an employee is successful in establishing that they were unfairly dismissed they can potentially be awarded (based on their length of continuous service) the following awards (in addition to any contractual sums they may be entitled to (e.g. notice pay, accrued holiday pay):

– Less than 26 weeks service– 4 weeks’ pay;

– More than 26 weeks but not more than 1 year service – 4 weeks’ pay;

– More than 1 year but not more than 2 years service – 8 weeks’ pay;

– More than 2 years service but not more than 3 years service – 12 weeks’ pay;

– More than 3 years service but less than 4 years service – 16 weeks’ pay;

– More than 4 years service but less than 5 years service – 21 weeks’ pay; and

– More than 5 years service – 26 weeks’ pay.

However, the Tribunal may reduce this award if it considers it just and equitable to do so. This may include where it is found that:

• The conduct of the employee contributed directly to the dismissal
• The employee refused an offer by the employer for an amount equal to the maximum award that a tribunal could award

This article does not constitute legal advice, should legal advice be required please do not hesitate to get in touch.