Employment Law

General

This is one of the most rapidly expanding areas of law which is becoming ever more complex, particularly with the increasing influence of European Legislation.  The recent Human Rights Act is likely to have a deep impact upon Employment Law in the UK.  For these reasons it is more than ever necessary to have expert advice on the particular employment problem you might have encountered.  At Mair Matheson we have acted over the years on behalf of both employers and employees in relation to cases of unfair dismissal in particular which is why we concentrate on this area below.  If your situation involves areas of Employment Law which are particularly specialist or unusual, a referral can easily be made to a Specialist Employment Lawyer with knowledge of such matters.

Even when you have been dismissed unfairly, it is not always the case that you can take your case to an Employment Tribunal.  For instance in many cases (though not all) you must have been in employment with the dismissing employer for at least a year and you must be below retiral age.  Even when these criteria cannot be met, what might appear to be a hopeless case might turn out not to be so when approached from a different angles.  For instance, whilst a person might not be able to a claim unfair dismissal, having only worked for his or her employer for a short period, he or she might on the other hand have a claim based on sex discrimination.

A number of dismissals are deemed by law to be automatically unfair.  For instance this would be the case if the reason or principle reason for the dismissal was that a person was pregnant.  Similarly if the principle reason for an employee’s dismissal relates to the transfer of his or her employer’s business or undertaking to a third party, this will also be automatically unfair.  A dismissal by reason of redundancy will be automatically unfair if the selection is made on one of a number of specified grounds such as that the dismissal was union or maternity related.  Each individual case has to be assessed on its merits to ascertain whether a particular piece of legislation might apply to it.

 An employer might be justified in dismissing an employee as a result of (a) misconduct, (b) lack of capability or qualification, (c) redundancy, (d) he or she is breaking the law and (e) some other “substantial reason” of a kind which justifies dismissal.  Even if an employer establishes that the reason for the dismissal is one of the above, however, a Tribunal will proceed to determine whether the dismissal was fair or unfair in all the circumstances (which include the size and administrative resources of the employer) taking into account fairness and the basic merits of the case. 

Unfair dismissal is a huge and varied area of law and it is very difficult without knowing the specific circumstances of any particular case to advise whether the dismissal was unfair or not.  We can however give a few pointers in particular cases which might offer food for thought for anyone who has been recently dismissed.

(A) Lack of Capability

Here it is essential that the employer has made it absolutely clear to the employee what was required of him or her and that he or she fell short of these requirements.  Performance must have been measurable and proper procedures followed by the employer to give the employee time and opportunity to improve and/or explain his or her failure.

(B) Misconduct

In order to justify dismissal, misconduct must be extremely serious or if not extremely serious, must be repeated on more than one occasion.  For instance, one single incident of bad time keeping will not in most cases be considered sufficiently serious to justify dismissal.  Any such matters may be governed by an employee’s written contract if one exists. Any good contract of employment will have a well laid down disciplinary procedure which must be followed, failing which a finding of unfair dismissal will often ensue.  If an employee is suspected of misconduct, the employer should investigate the matter fully and give the employee an opportunity to explain him or herself  The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct but merely has to show that the employer had acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to the employer (or which the employer ought reasonably to have known or investigated) at the time.

(C) Redundancy

If an employer’s business runs into difficulty, redundancies may become inevitable and if properly handled by the employer will not constitute unfair dismissal.  Many employers, however, particularly when faced with difficult decisions, fail to follow correct procedures and make redundancies which are then subject to successful claims of unfair dismissal by way of redundancy.  One of the crucial elements here is that the employer properly consults the affected employees and investigates alternative options to redundancy.  If no alternatives can be found and redundancies are inevitable, objective criteria for selection for redundancy have to been drawn up and fairly applied.  This is again often a hurdle at which employers fall down.

(D) “Any other Substantial Reason”

Examples when this ground for dismissal might be deemed to be fair are for instance where the re-organisation of a business is necessary for its survival or an employee is in prison which affectively brings the contract to an end.  This ground for dismissal is often used by employers to justify changes occurring after the sale of a business and it will depend on the particular circumstances whether or not it is fair.

 This idea is much misunderstood.  Put simply it arises when an employee becomes entitled to dismissal law rights despite not having been explicitly “fired” by his employer.  An employee who claims that he or she has been constructively dismissed must show that (a) the employer breached the contract of service, (b) the breach was so fundamental as to justify the employee terminating the contract (or that it was ”the last straw” in a series of more minor incidents amounting to the same thing), (c) the employee terminated the contract as a direct result of the breach and (d) he or she did not delay too long in so doing.

Some typical examples of unilateral action by an employer which might justify constructive dismissal are pay-cuts and changes in job duties.  More and more employers however are issuing contracts which contain ”flexibility” clauses allowing the employer to require the employee to undertake new duties at different times and different locations.

Claims under this heading are often based on the breach by the employer of the obligation (which is implied by law whether or not it is stated in the employment contract) of mutual trust and confidence between employer and employee.  For instance the humiliation of an employee in the presence of colleagues, failure to provide proper working conditions or failure to provide an over-worked employee with reasonable support might all, depending on the circumstances, justify a claim for constructive dismissal.

Claims may be made to an Employment Tribunal for breach of contract in its own right which will often over-lap with claims for unfair dismissal, particularly constructive dismissal.

These are many and varied but the sickness of an employee is often an area which causes severe difficulties for both employee and employer, principally because it creates a major conflict of interest between the two parties.  The employer’s business will probably suffer if the employee is ill for a prolonged period or periods, whereas the employee will seldom wish to lose his or her job.  Much will depend on the particular requirements of the business and the impact of the absence of the employee from the business.  The type of illness and the prospect of recovery in the light of any available medical opinion will be critical factors and of course the terms of the employment contract, the employee’s length of service and attendance record will all be relevant factors.  If you are an employer or employee faced with this type of situation, it is never too early to seek legal advice!

Most applications to a Tribunal for unfair dismissal have to be presented within three months of the date of dismissal although there are exceptions to this rule.  If a claim is successful, the Tribunal has an enormous amount of discretion in setting the level of a particular award.  Having assessed an award, if a Tribunal decides that an unfairly dismissed employee has by his or her own action caused or contributed to the dismissal, it may reduce the amount of compensation by an amount it considers just and equitable.  It is even possible for the employee’s contributory conduct to be assessed at 100%!  In general terms if an employee immediately or soon after being dismissed is able to start another job with similar pay, the amount of compensation to which he or she will be entitled will be much less than in the case of an employee who has not found work and is not likely to in the foreseeable future.  In each case it is sensible to consider the likely levels of compensation achievable before becoming involved in litigation.

Legal Advice and Assistance has been available for many years now in respect of unfair dismissal claims, but this has not included legal aid or representation by a Solicitor at an Employment Tribunal.  Recent legislation has altered this and it is now possible in some cases to obtain legal aided representation at a Tribunal.  We can advise further on the exact circumstances in which Legal Aid is likely to be granted and on how the system actually works.