144 9: Dismissal and redundancy Part C Employment law
The first stage of a tribunal is where the clamant submits a claim form that sets out their case. The other
party submits a response form that sets out their case. The second, 'sift' stage involves an Employment
Judge reviewing all the documentation and deciding whether the case should go to a hearing. A case may
be rejected if there is no case for the respondent to answer or if the matter is outside the scope of a
tribunal. A preliminary hearing is set where any case management or other issues are heard and this may
be converted into a final hearing if no party is materially prejudiced. Otherwise, a final hearing date is set
when the case is heard before the tribunal panel and a decision is reached.5 Unfair dismissal
Certain employees have a right not to be unfairly dismissed. Breach of that right allows an employee to
claim compensation from a tribunal. To claim for unfair dismissal, the employee must satisfy certain
criteria.Unfair dismissal is an extremely important element of employment protection legislation.
The remedies available following a successful action for wrongful dismissal are limited to damages
compensating for the sum which would have been earned if proper notice had been given.
Legislation seeks to widen the scope of protection and increase the range of remedies available to an
employee who has been unfairly dismissed. Under the terms of the Employment Rights Act 1996 a
statutory maximum compensatory award is set every year which a tribunal may award to an employee
who is unfairly dismissed.5.1 Scope
Every employee who qualifies under the criteria (a) and (b) below has a statutory right not to be unfairly
dismissed. Certain categories of employee are excluded from the statutory unfair dismissal code.
Persons employed to work outside Great Britain
Employees dismissed while taking unofficial strike or other industrial action
Other categories, including members of the police
In order to obtain a statement of reasons for dismissal, compensation or other remedies for unfair
dismissal the employee must satisfy several criteria.
(a) Have been continuously employed for two years whether full-time or part-time (under the Unfair
Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012.
(b) Have been dismissed. This may have to be determined by the tribunal, for example if the employee
resigned claiming constructive dismissal.
(c) Have been unfairly dismissed. Dismissal may be unfair even though it is not a breach of contract
by the employer.
There are some exceptions to the continuous service qualification. These are:
Where the matter concerns a safety representative being penalised for carrying out legitimate
health and safety activities
Where an employee is being denied a statutory right (for example an unlawful deduction from wages)
Where the employee is pregnant
The effective date of dismissal is reckoned as follows.
Where there is termination by notice, the date on which the notice expires
Where there is termination without notice, the date on which the termination takes effect
Where an employee's fixed term contract is not renewed, the date on which that term expiresFAST FORWARD