Faculty of Business and Law

Problem Question on Dismissal

Introduction: 

In the present case study, Gabriel had been dismissed by the company after she was found to be involved in bullying the assistant designers. She was immediately suspended from work and escorted out of the premises. However during her tenure the company, she was never acused by the staff the company and Gabrielle that it was a case of mistaken identity. After making an investigation, the company is going to inform Gabrielle that she is going to be dismissed but she will have a right to appeal.

She is required to launch an appeal within seven days of the decision and moreover, she is allowed to produce written evidence only. Under the circumstances, the company wants to know if it will be successful in defending a claim of unfair dismissal brought by Gabrielle. 

The present assignment is concerned with the provisions of employment law regarding unfair dismissal, the right to a hearing and the provisions related with redundancy. It also needs to be seen if Gabriel can have a case against the company under the common law. 

Any worker with the required amount of service time is protected against unfair dismissal. Before firing an employee, a company must prove that the reason (or, if more than one, the primary reason) for the termination is permitted under the Employment Rights Act of 1996. 

Legal protections against unfair dismissal limit the circumstances under which an employer may fire an employee for wrongdoing. A worker has "the right not to be unfairly dismissed" by their employer, per S. 94 of the Employment Rights Act (ERA) of 1996. Section 98 lays out the procedure for determining whether a dismissal is fair or unfair, with Section 98(4) establishing reasonableness of the employer's behaviour as the standard for fair dismissal.

If an employment tribunal (ET) finds that a worker was unfairly terminated, and if the worker requests and the circumstances allow for it, the ET may order that the worker be reinstated or reengaged (Freedland et al., eds., 2016). The ET will usually order a compensation award consisting of both a basic payment and a compensating award. When deciding whether or whether a termination for misconduct was justified, an ET will give considerable weight to the employer's intentions and actions at the time of the termination and less weight to evidence of the employee's alleged wrongdoing.

Hence, a dismissal may be justified even if the employee was completely innocent of the misbehaviour accused, so long as the employer had sufficient grounds at the time of dismissal to believe the employee had participated in misconduct (Bronstein, 2017). As the burden of unfair dismissal legislation falls on the employer (since most successful unfair dismissal claims end in an award given by the employer to the employee), it is only fair that the burden be imposed if the employer's behaviour is at fault.

It has to be seen in the present case if the company can successfully defend give Gabriel decides to bring a claim of unfair dismissal against the company. At the same time, at the same time, the company may also be required to face the claims that the employment tribunal for making 25 machinists redundant. For this purpose it has to be seen if the proper procedure has been followed by the company.

Unfair Dismissal:

Employees are safeguarded against arbitrary termination by law. Unfair termination in the United Kingdom is governed under the Employment Rights Act (ERA) 1996.

A termination must fall within one of these five categories for it to be considered fair:-

• Capability or qualifications.
• Conduct.
• Illegality or contravention of a statutory duty.
• Redundancy 
• Some other substantial reason

Businesses should establish and make known to their workforce clear policies and processes for handling employee disputes. Managers and other employees who deal with employee complaints and reprimands need thorough training on the company's disciplinary rules and processes (Rainnie, 2016). The organization as a whole should apply the same standards of fairness and consistency to all disagreements.

Fairness:

There are five legal grounds for dismissal, but for it to be considered fair, the employer must have have responded in a fair and reasonable manner. This requires adhering to a fair process, the parameters of which are open to interpretation by an employment tribunal.

A dismissal may not be justified even if an employee is found guilty of extremely significant misbehaviour (sometimes known as "gross misconduct"). The company is still responsible for conducting its own inquiry and taking all relevant factors into account (De Stefano, 2015).

Investigation:

The decision to fire an employee is a major one that should not be taken lightly. Managers should always verify the facts before moving forward. Managers should think twice before firing an employee if they can take a more constructive way that does not entail firing them.

When an employee's actions or inactions are at issue, the burden of "evidence" that the employee committed an accused offence is lower than in a criminal court. Yet, the company must show that it conducted a comprehensive inquiry into the allegations. Helpful guidelines have been released by ACAS.

In cases when an employee's lack of competence is causing subpar performance, the employer should implement suitable corrective measures (often comprising training and education) to assist the person raise his or her game. Companies should consider mitigating factors, such a pre-existing health issue, when discussing an employee's poor performance (Noon and Morrell, 2017). They should also encourage a constructive dialogue and provide referrals to appropriate professionals.

A recent judgement by the Employment Appeal Tribunal (EAT) serves as a helpful reminder that, even when it is obvious that the employee was engaged in unlawful conduct, a fair process must be followed before dismissal (Dr Richard Evans v Brent).

Mr. Evans, the defendant in the case Evans v. London Borough of Brent, was a deputy principal of Copland Community School. Disciplinary action was taken against him when suspicions of financial misdeeds surfaced.

Mr. Evans was given a large stack of inquiry documents before his disciplinary hearing. Mr. Evans asked for more time so that he could learn the paperwork and bring his sister, who had always accompanied him to interviews but was out of town on the day of the hearing. The request made by Mr. Evans was refused, and he was fired after the hearing.

Once it was discovered that Mr. Evans had received illicit over-payments totaling over £250,000, his unjust dismissal claim was put on hold until the result of the criminal prosecution against him could be determined. Mr. Evans's claim at the Employment Tribunal was eventually dismissed on the grounds that he faced a "absolute bar" to any monetary recovery as a result of his own actions.

Mr. Evans filed an appeal, stating that the claim should be allowed to go forward since he had a good chance of winning due to the procedural injustice. The appeal was successful at the EAT. Court ruled that Mr. Evans' unjust dismissal action may go forward even though he stood to receive no monetary damages. The EAT recognized in its decision that a judgment of unjust dismissal is valuable to Mr. Evans in and of itself, apart from the question of monetary compensation.

Employers should make sure that appropriate rules are in place and the relevant processes are followed to, even if it seems obvious on the circumstances of the case that dismissal of the employee would've been unavoidable (Mosley, 2016). To address the issue of procedural fairness in this instance, the court may have given Mr. Evans more time to review the bundle and allowed him to bring the person he had previously brought with him. The significant cost of defending its stance at ET might have been avoided if the employer had accepted a brief delay for ensuring a fair procedure. 

Sometimes it's necessary to fire an employee, whether it's because of poor performance, disruptive behaviour, or the company's inability to pay to keep everyone on staff. Even if you have a good cause to fire someone as an employer, you must still do it in a fair and legal manner.

Employee rights on dismissal

The length of time an employee has worked for you is a major factor in determining their entitlements upon termination. In most cases, an employee has to have worked for you consistently for two years before filing a claim of unjust dismissal.

This implies that, in principle at least, you don't have to provide a reason for firing an employee who has been with the company for less than two years. But, in cases where disciplinary and dismissal processes are laid out in writing, they must be adhered to or the company risks a wrongful termination lawsuit based on a breach of contract (Ferdosi, 2021).

An employee is not need to have any minimum amount of service before filing a wrongful termination claim. An employee may have a claim for wrongful dismissal as early as the first day of work under certain conditions (Fazilah, Mohamad and Hamid, 2019). That's what is called ‘automatic’ or ‘unfair’ dismissal.

When an employee's statutory employment rights are violated a dismissal is often considered inherently unjust. For instance, firing an employee will be considered inevitably unjust if the cause for the firing is related to any of the following:

Pregnancy and any maternity-related reasons

Family-related reasons, such as parental, paternal, adoption, and caregiving leave

Playing the role of a representative of an employer or union

Choosing whether or not to join a union

Being a temporary or part-time worker

Salary and hours worked, including minimum wage and paid time off

Disclosing misconduct at work, or whistle blowing

Difference between Unfair and Wrongful Dismissal:

When someone is fired from a job in violation of the terms of their employment agreement, it is considered wrongful dismissal. Due to the fact that it is founded on contract law, it varies from unjust dismissal. If someone is wrongfully fired, they are entitled to compensation for all financial and non-financial benefits that they would have received had they been fired in accordance with the contract, for example, if they had been kept on until the end of their notice period or the fixed term of the contract (Pepple, Zhang and Ofoma, 2021).

All workers are eligible to file claims and request damages under Section 94 of the Employment Rights Act of 1996 for unjust dismissal. Employees who begin new employment on or after April 6, 2012, often do not acquire the right against unjust termination until they have been with the company for at least two years.

• Whether the employee was dismissed or not;
• Was there a reasonable basis for the employee's dismissal?

At common law, the employer may terminate an employee for any cause with reasonable notice. If an employee has the required number of years of service, they may only be terminated without cause if the law allows it.

Reasonableness:

If an employer wants to fire an employee for what may be a justifiable cause and uses what is generally seen as a fair method for doing so, it must be capable of showing that it behaved properly in firing the individual. Different considerations will apply depending on the nature of the dismissal (Grimshaw et al., 2017.). When deciding whether an employer behaved properly, all the facts and circumstances, such as the amount of resources and size of the business, will be taken into account.

In view of the above-mentioned discussion, it can be stated that in the present case, Gabrielle has not been given a chance to a fair hearing. Right to appeal was given to Gabrielle but she was allowed to produce written evidence only and this amounts to an infringement offer employment rights and as a result, Gabrielle claimed that she has been unfairly dismissed from employment. 

Redundancy:

Another issue present in this case is if the company can avoid claims at the ET for its redundancy procedure. For this purpose it is important to take a look at what may be termed as fair procedure in redundancy. 

One must determine which workers are to be laid off if one has reorganized the firm or organization or been obliged to make severe financial concessions owing to a downturn in business. When a company has to reduce its payroll expenses, it may have to make cuts across the board, which means finding out which workers are at danger of being let off (Themistocleous, 2019). Those are the people who will be considered for redundancy as part of the selection pool.

After a major organizational shift, some positions may be rendered unnecessary. Nevertheless, it is essential to keep in mind that even in cases when certain positions may be eliminated, the selection pool should not be limited to people presently filling those positions, but should include all personnel capable of executing that task (Howe, 2016). This may include workers who have the same or a comparable position in another division or at a different location. 

Employer must use a transparent and equitable process to choose workers from the pool of those at risk of redundancy.

The corporation, as the employer, has a reasonable amount of leeway in deciding which redundancy selection criteria to utilize; nonetheless, you should not attempt to change from the criteria specified in any existing written redundancy processes without good cause (Munshi, 2018). Moreover, if a procedure for determining layoffs has been negotiated with a labour union, employer must use that procedure.

The employer should never rely exclusively on subjective factors when making redundancy decisions, and should instead seek out objective measures that can be used objectively and consistently. A corporation must apply its specified selection criteria to its pool of workers at risk of redundancy in a fair and consistent manner and, where feasible, based on an objective evaluation with reference to clear evidence.

Scoring candidates in accordance with the specified selection criteria may help you avoid over-reliance on any one factor and reduce the possibility of bias. But, this weighted approach will give you more leeway in how you evaluate people, since the organization may pick which redundancy criteria are most significant. Nevertheless, there is no hard and fast rule that redundancy criteria must be able to be scored or evaluated in a "box-ticking" fashion in order to be acceptable (Howe, 2016).

While every effort should be made to employ objective measurements, such as performance statistics being backed up by documented performance assessments or appraisals, there will often be a need for some amount of judgment. To ensure that employees have a thorough understanding of their evaluation, companies should give extensive documented proof to back up any scores or decisions made.

Employees are selected for redundancy based on a variety of factors, including but not limited to aptitude, performance appraisals, and disciplinary records, all of which are defined in a redundancy selection criteria matrix. Next, a score is assigned to each redundant worker based on how they fared across all of the matrix's criteria. The workers with the lowest ratings would be the ones to be laid go. Employer may reduce the likelihood of a complaint by following a clear decision-making process and applying each criterion uniformly if you use a redundancy criteria matrix (Ferdosi, 2021). Employees will have a better understanding of the factors considered and the reasoning behind any layoffs.

Conclusion:

Employees are selected for redundancy based on a variety of factors, including but not limited to aptitude, performance appraisals, and disciplinary records, all of which are defined in a redundancy selection criteria matrix. Next, a score is assigned to each redundant worker based on how they fared across all of the matrix's criteria. The workers with the lowest ratings would be the ones to be laid go (Noon and Morrell, 2017). You may reduce the likelihood of a complaint by following a clear decision-making process and applying each criterion uniformly if you use a redundancy criteria matrix. Employees will have a better understanding of the factors considered and the reasoning behind any layoffs.

Under the circumstances, it is very important for the company to have a discussion with the machinists and informed them of the criteria being used by the company for selecting the employees for redundancy. This way the company will be able to avoid any claims at the ET. 

References

Bronstein, A., 2017. International and comparative labour law: current challenges. Bloomsbury Publishing.

De Stefano, V., 2015. The rise of the just-in-time workforce: On-demand work, crowdwork, and labor protection in the gig-economy. Comp. Lab. L. & Pol'y J., 37, p.471.

Dr Richard Evans v The London Borough of Brent: UKEAT/0290/19/RN

Fazilah, S., Mohamad, A.A.A. and Hamid, Z.A., 2019. Monetary Compensation As a Remedy for Unfair Dismissal: a Study in United Kingdom and Malaysia. IIUM Law Journal, 27(2), pp.447-468.

Ferdosi, M., 2021. The development of employment protection legislation in the United Kingdom (1963-2013). Labor History, 62(4), pp.511-531.

Freedland, M., Bogg, A., Cabrelli, D., Collins, H., Countouris, N., Davies, A.C.L., Deakin, S. and Prassl, J. eds., 2016. The contract of employment. Oxford University Press.

Grimshaw, D., Johnson, M., Keizer, A. and Rubery, J., 2017. The governance of employment protection in the UK: how the state and employers are undermining decent standards. Myths of employment deregulation: how it neither creates jobs nor reduces labour market segmentation, 225.

Howe, J., 2016. Rethinking job security: A comparative analysis of unfair dismissal law in the UK, Australia and the USA. Taylor & Francis.

Mosley, H.G., 2016. Employment protection and labor force adjustment in EC countries. Labor Market Institutions in Europe: A Socioeconomic Evaluation of Performance, pp.59-81.

Munshi, J., 2018. Job redundancy as a strategic option for MNEs and its right implementation technique. International Journal of Economics & Management Sciences, 7(3), pp.3-7.

Noon, M. and Morrell, K., 2017. The realities of work: Experiencing work and employment in contemporary society. Bloomsbury Publishing.

Pepple, D., Zhang, C. and Ofoma, C., 2021. Managing Redundancy. In Financial and Managerial Aspects in Human Resource Management: A Practical Guide. Emerald Publishing Limited.

Rainnie, A., 2016. Industrial relations in small firms: Small isn't beautiful. Routledge.

Themistocleous, C., 2019. Avoiding unfair dismissals linked to redundancy. Nursing And Residential Care, 21(7), pp.409-411.

Undy, R., Ellis, V., McCarthy, W.E.J. and Halmos, A.M., 2022. Change in Trade Unions: the Development of UK Unions since the 1960s (Vol. 20). Taylor & Francis.