ACAS Unfair Dismissal | 79 complete questions and answers

ACAS Unfair Dismissal | 79 complete questions and answers What are the 5 stages of Unfair Dismissal? - 1. Eligibility 2. Employee must show that he has been "dismissed". 3. The employer must show the reason for the dismissal 4. The "reasonableness" issue. What is stage 1? - - Is the claimant an employee? - Is he within one of the excluded categories of employee? - Has he been employed for atleast 2 years continuously by the dismissing employer? - Has the complaint been presented within 3 months of the "Effective date of termination" of the contract? Stage 1: a) Is the claimant an employee? - To be eligible, the claimant must be an employee as defined in s.230 of the ERA: "Employee means an individual who has entered into or works under a contract of employment" - Also requires analysis of employee status. Stage 1: b) Excluded Classes: - The most common excluded categories are: - Share fishermen-- People who catch fish and get paid according to the amount of fish they catch. Police officers are excluded by S.200 ERA 1996. Employees working under illegal contracts. Stage 1: Length of continuous employment: - - S.108 imposes a major limitation on eligibility immediately prior to the date of dismissal. - This requirement does not apply where the employee is dismissed for certain "automatically unfair" reasons such as trade union reasons (s.152(1)) Trade Union and Labour relations act 1992, in which case the employee has protection from the first day of employment. - R Secretary of State for Employment ex p Seymour Smith and Perez-- A claim brought that argued that the 2 year requirement was discriminatory on the grounds of sex as women are more likley to have shortened lengths of service than men. Failed as it apparantly had no adverse effectd and even if it was it was objectively justified. - Redfearn v UK-- dismissed for his political opinions. Courts said that if you are dismissed for your political affiliations, you are protected from day 1 and dont need the 2 year qualifying period. - If you are dismissed for trying to enforce a statutory right, that is automatically unfair and the 2 year qualifying requirement doesnt apply. Stage 1: b) Continuity of employment: - - ss.210-219 of the ERA contain detailed provisions on continuity. - Relevant to find out how much compensation you'll get. Who must prove continuity? - The basic presumption of coninuity is set out in s.210(5) of the ERA: "a persons employment during any period shall, unless the contrary is shown, be presumed to have been continuous"-- Rebuttable. Nicoll v Nocorrode: Appeal tribunal said that if it is unclear whether they have worked the necessary period, they only need to show some weeks which count towards continuity, and the burden is then on the employer to disprove continuity. Can continuity be preserved even when there is no contract? - s.212(3) ERA: If you got rid of by a company because you were ill and then they took you back on, if the absence was less than 26 weeks, your continuity is preserved. Donnelly v Kelv