Information for Employees

Redundancy for the purposes of the reason for dismissal has a statutory meaning found in s139 ERA 1996. In simple terms a redundancy occurs where an employee is dismissed because his employer has ceased or intends to cease to carry on in business altogether or at that particular location. It can also occur where there is a reduction in the number of staff needed to carry out work of a particular kind or at a particular location which is a reduction in head count rather than all out closure.

In redundancy situations, employers need to inform the employees at the earliest opportunity and consult with them. Those employees with two years service will be entitled to a statutory redundancy payment and all employees are entitled to receive notice of dismissal.

Where there are more than 20 redundancies proposed at any one establishment there is a more stringent procedure that must be followed and set periods of consultation. This is called collective consultation.

If you do not feel the process followed has been fair or that you have been unfairly selected you should seek advice as if you wish to challenge this, it would be an unfair dismissal claim with a time limit of three months from the effective date of termination.

Written by
Edward Aston
14th January 2014

This is a question that is frequently asked as cases where an employee resigns in response to their employer’s conduct are often called constructive dismissal. It is however still a claim for unfair dismissal and not a separate claim.

In these cases, you have the additional burden of proving dismissal if you are an employee. Claims for constructive unfair dismissal are statistically harder to win because you need to establish dismissal. The burden is on the employee to show that there was a dismissal in the legal sense. In such cases, the employee must show the following:

1. His employer has committed a serious breach of the contract i.e. a repudiatory breach. The leading case is Western Excavating Ltd v Sharp [1978]
2. He has left because of the breach;
3. He has not waived the breach known as affirming the contract i.e. he must not delay his resignation too long or do anything else which accepts acceptance of the breach;

If you think you have been unfairly dismissed you should seek advice as soon as possible. There are time limits for bringing unfair dismissal claims before the Employment Tribunal of three months from the effective date of termination.

In order to bring a claim for unfair dismissal, you need to have two year’s service with the employer unless one of the automatically unfair reasons for dismissal applies. The automatically unfair reasons are contained in s98B – 105 of the ERA 1996. The most common automatically unfair reasons are assertion of a statutory right, health and safety allegations made by the employee, working time cases, pregnancy or any other form of leave for family reasons.

If you qualify to bring a claim for unfair dismissal this is brought in the Employment Tribunal. In order to bring such a claim you must used a prescribed form called an ET1 form which is available online. You must also pay a fee to issue the claim and the level of the fee depends on the type of claim you are bringing. For unfair dismissal cases this is currently £250. If you cannot afford to pay the fee you must make an application for remission of fees instead. A claim will only be accepted once a fee has been paid or a remission application has been made.

Employment Tribunals can only award you compensation based on your financial losses for unfair dismissal. They are also able to make an order for reinstatement (your job back) and re-engagement (another role with the same employer on similar terms and conditions). If they award compensation then this is made of two elements. Firstly, the basic award which is calculated in the same way as a statutory redundancy payment. Secondly, the compensatory award which calculates your financial losses and is subject to a duty to mitigate your losses by looking for another job. The compensatory award is also now subject to two caps, first the overall cap of £74,200 and secondly the limit of 52 week’s gross pay for the purposes of compensation. Tribunals cannot award injury to feelings payments for unfair dismissal cases.

Written by
Edward Aston
14th January 2014

An employee has the right not to be unfairly dismissed by his employer under s94 of the Employment Rights Act (ERA)1996.

Firstly, you must establish whether the employee has been dismissed within the meaning of s95 of the ERA 1996. Dismissal occurs where the employer terminates the contract with or without notice, non-renewal of a fixed term contract or where the employee terminates the contract with or without notice in circumstances in which he is entitled to do so by reason of the employer’s conduct.

Assuming there is a dismissal, then the next step would be to look at the reason for the dismissal. There are a number of permitted fair reasons for dismissal under s98 ERA 1996. The fair reasons are capability or qualifications of the employee, conduct of the employee, redundancy, illegality or some other substantial reason of a kind to justify dismissal of the employee such as a reorganisation. If the dismissal is not for one of these reasons it will be unfair.

Even if it is for a fair reason, the employer must still follow a fair procedure according to the circumstances of the case including the size and administrative resources of the employer. The procedure to be followed depends on the reason for dismissal. There is an ACAS Code of Practice COP1 which demonstrates a fair procedure in conduct and capability cases. For redundancy cases a fair procedure is determined by the case law on redundancy and includes consultation. If there is no procedure or an unfair procedure is followed then it is normally an unfair dismissal.

Employees with requisite service have the right to complain of unfair dismissal before an Employment Tribunal (see post on claiming unfair dismissal).

Written by
Edward Aston
14th January 2014