Unfair Dismissal - Background, Identif
Reasoning
Wrongful vs Unfair Dismissal
Wrongful - Based on notice periods and whether terms of the contract had been complied with
Limits on dismissal depend on contract's terms.
Remedies are contractual.
Unfair - Statutory claim, not breach of contract claim.
Based on reasonableness of decision to dismiss and dismissal process.
Principles of Liability
Employment Rights Act 1996, s94(1) - 'An employee has the right not to be unfairly dismi
ERA 1996 Part X - Establishing the claim.
Burden of proof on claimant to establish:
Employee status.
Sufficient continuity of employment to claim.
That they have been dismissed.
Burden of proof on respondent (employer) to establish:
Reason for dismissal.
Reasoning was potentially fair, such as capability, conduct, redundancy, illegality or
Then up to the Employment Tribunal to determine whether the dismissal is fair or unfair
Neutral burden of proof at this point between the parties.
Qualifications to Claim
Employee - ERA s94.
'Workers' and self-employed cannot claim.
2 years' continuous service - ERA s108.
Was the employee 'dismissed'? - ERA s94.
Exceptions
Contracted out - ERA s203.
Settlement agreements.
Reasoning
Wrongful vs Unfair Dismissal
Wrongful - Based on notice periods and whether terms of the contract had been complied with
Limits on dismissal depend on contract's terms.
Remedies are contractual.
Unfair - Statutory claim, not breach of contract claim.
Based on reasonableness of decision to dismiss and dismissal process.
Principles of Liability
Employment Rights Act 1996, s94(1) - 'An employee has the right not to be unfairly dismi
ERA 1996 Part X - Establishing the claim.
Burden of proof on claimant to establish:
Employee status.
Sufficient continuity of employment to claim.
That they have been dismissed.
Burden of proof on respondent (employer) to establish:
Reason for dismissal.
Reasoning was potentially fair, such as capability, conduct, redundancy, illegality or
Then up to the Employment Tribunal to determine whether the dismissal is fair or unfair
Neutral burden of proof at this point between the parties.
Qualifications to Claim
Employee - ERA s94.
'Workers' and self-employed cannot claim.
2 years' continuous service - ERA s108.
Was the employee 'dismissed'? - ERA s94.
Exceptions
Contracted out - ERA s203.
Settlement agreements.
