Post by Denise on Jun 17, 2011 14:44:45 GMT
Getting across the line - when can an employer dismiss an employee fairly?
inShare.17 June 2011
A charity worker who dressed as Brian the Snail to crawl the London marathon was reportedly sacked for failing to raise enough sponsorship money but was this a fair reason for dismissal?
Lloyd Scott hoped to raise at least £100,000 for charity Action for Kids by crawling the London Marathon dressed as Brian the Snail from The Magic Roundabout. After taking almost a month to complete the course he only raised about £20,000 and the charity reportedly gave him his notice, "due to losses incurred". Although this seems like a harsh response from the charity, it is not a foregone conclusion that Mr Scott would win a claim of unfair dismissal at an employment tribunal. In this article we consider the requirements for a fair dismissal by an employer.
A fair reason for dismissal?
Unlike in the USA, there is no concept of “employment at will” in the UK. Protection against unfair dismissal is a statutory concept: Parliament first legislated in 1971 to give individuals employed under a contract of employment the right not to be dismissed unfairly, but generally only after 12 months in employment.
To avoid a claim of unfair dismissal, an employer can not dismiss an employee on a whim for no reason, it must have a potentially fair reason for dismissing an employee and this must be the principal reason for the dismissal.
The potentially fair reasons for dismissal are only those which are set out in the legislation (section 98 of the Employment Rights Act 1996):
•the capability or qualifications of the employee (including ill-health)
•the conduct of the employee
•redundancy
•illegality (where the employment can not continue without breaching legislation)
•some other substantial reason to justify the dismissal (“SOSR”)
It should be noted that retirement also used to be on the list but since the abolition of the DRA in April this year, retirement is no longer a potentially fair reason for dismissal.
The SOSR category is clearly the widest, acting as something of a “catch-all”. Examples of SOSR include dismissals due to: personality clashes, behaviour outside of work which has or may bring the employer into disrepute, refusal to accept policies introduced by the employer, dismissal of senior management following a take-over, misrepresenting qualifications and following pressure to dismiss from a third party such as a customer.
Reasonable to dismiss?
Even if an employer can identify a potentially fair reason for the dismissal this is not the end of the story, it must go on and show that it also acted reasonably in treating the potentially fair reason as a sufficient reason to dismiss in the particular circumstances of the case.
An employment tribunal will ask itself whether the employer’s decision to dismiss was within the “band of reasonable responses” which a reasonable employer might take if they were faced with the same situation? Depending on the circumstances the band might include dismissal at the harsher end of the spectrum with a warning at the other end. If dismissal was within the band, as assessed by an employment tribunal then it will be a fair dismissal. If it falls outside the band it will be unfair.
There could be a range of equally reasonable responses for an employer and different employers may very well take different options equally fairly.
However, the role of an employment tribunal is not to decide what they would have done and substitute its own opinions for those of the employer. A tribunal must restrict their considerations to whether the employer’s action fell within a range of reasonable responses for a reasonable employer. Even if a tribunal thinks the employer’s response was harsh, as long as it is within the band of reasonableness the dismissal will be not be unfair.
In assessing what actions the band of reasonable responses might include a tribunal must take into account the size and administrative resources of the employer. A larger employer might be expected to show more latitude due to its greater resources than a smaller employer in the same circumstances.
It is also important that an employer acts equitably when dismissing an employee, this will require an employer to take into account any special mitigating circumstances and also to treat employees in the same circumstances consistently.
Procedural fairness
Part of the question about whether the dismissal was reasonable in all the circumstances also involves consideration about whether the procedure followed by the employer leading up to the dismissal was fair.
A tribunal will consider the good practice guidance laid down in the ACAS Code of Practice on Disciplinary and Grievance Procedures (“ACAS Code”) as a benchmark in disciplinary cases. There are some general principals which can be identified:
•deal with issues promptly without unreasonable delay
•employees should not be “ambushed” with allegations but informed in advance of any case against them
•employers should approach the situation with an open mind: no action should be taken until the facts have been established
•employees should have the chance to respond and make representations
•employees should be given an opportunity to appeal
•employees should be allowed to be accompanied at meetings
•employers should act consistently
Summary
A fair dismissal entails:
•The employer having a potentially fair reason for the dismissal.
•The employer acting reasonably in dismissing this particular employee in these particular circumstances.
•The employer following a fair procedure, generally reflecting the recommendations of the ACAS Code.
To access this article:
www.shoosmiths.co.uk/news/3605.asp?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ShoosmithsLegalUpdatesRssFeed+%28Legal+updates+from+Shoosmiths+RSS+feed%29&utm_content=Twitter
inShare.17 June 2011
A charity worker who dressed as Brian the Snail to crawl the London marathon was reportedly sacked for failing to raise enough sponsorship money but was this a fair reason for dismissal?
Lloyd Scott hoped to raise at least £100,000 for charity Action for Kids by crawling the London Marathon dressed as Brian the Snail from The Magic Roundabout. After taking almost a month to complete the course he only raised about £20,000 and the charity reportedly gave him his notice, "due to losses incurred". Although this seems like a harsh response from the charity, it is not a foregone conclusion that Mr Scott would win a claim of unfair dismissal at an employment tribunal. In this article we consider the requirements for a fair dismissal by an employer.
A fair reason for dismissal?
Unlike in the USA, there is no concept of “employment at will” in the UK. Protection against unfair dismissal is a statutory concept: Parliament first legislated in 1971 to give individuals employed under a contract of employment the right not to be dismissed unfairly, but generally only after 12 months in employment.
To avoid a claim of unfair dismissal, an employer can not dismiss an employee on a whim for no reason, it must have a potentially fair reason for dismissing an employee and this must be the principal reason for the dismissal.
The potentially fair reasons for dismissal are only those which are set out in the legislation (section 98 of the Employment Rights Act 1996):
•the capability or qualifications of the employee (including ill-health)
•the conduct of the employee
•redundancy
•illegality (where the employment can not continue without breaching legislation)
•some other substantial reason to justify the dismissal (“SOSR”)
It should be noted that retirement also used to be on the list but since the abolition of the DRA in April this year, retirement is no longer a potentially fair reason for dismissal.
The SOSR category is clearly the widest, acting as something of a “catch-all”. Examples of SOSR include dismissals due to: personality clashes, behaviour outside of work which has or may bring the employer into disrepute, refusal to accept policies introduced by the employer, dismissal of senior management following a take-over, misrepresenting qualifications and following pressure to dismiss from a third party such as a customer.
Reasonable to dismiss?
Even if an employer can identify a potentially fair reason for the dismissal this is not the end of the story, it must go on and show that it also acted reasonably in treating the potentially fair reason as a sufficient reason to dismiss in the particular circumstances of the case.
An employment tribunal will ask itself whether the employer’s decision to dismiss was within the “band of reasonable responses” which a reasonable employer might take if they were faced with the same situation? Depending on the circumstances the band might include dismissal at the harsher end of the spectrum with a warning at the other end. If dismissal was within the band, as assessed by an employment tribunal then it will be a fair dismissal. If it falls outside the band it will be unfair.
There could be a range of equally reasonable responses for an employer and different employers may very well take different options equally fairly.
However, the role of an employment tribunal is not to decide what they would have done and substitute its own opinions for those of the employer. A tribunal must restrict their considerations to whether the employer’s action fell within a range of reasonable responses for a reasonable employer. Even if a tribunal thinks the employer’s response was harsh, as long as it is within the band of reasonableness the dismissal will be not be unfair.
In assessing what actions the band of reasonable responses might include a tribunal must take into account the size and administrative resources of the employer. A larger employer might be expected to show more latitude due to its greater resources than a smaller employer in the same circumstances.
It is also important that an employer acts equitably when dismissing an employee, this will require an employer to take into account any special mitigating circumstances and also to treat employees in the same circumstances consistently.
Procedural fairness
Part of the question about whether the dismissal was reasonable in all the circumstances also involves consideration about whether the procedure followed by the employer leading up to the dismissal was fair.
A tribunal will consider the good practice guidance laid down in the ACAS Code of Practice on Disciplinary and Grievance Procedures (“ACAS Code”) as a benchmark in disciplinary cases. There are some general principals which can be identified:
•deal with issues promptly without unreasonable delay
•employees should not be “ambushed” with allegations but informed in advance of any case against them
•employers should approach the situation with an open mind: no action should be taken until the facts have been established
•employees should have the chance to respond and make representations
•employees should be given an opportunity to appeal
•employees should be allowed to be accompanied at meetings
•employers should act consistently
Summary
A fair dismissal entails:
•The employer having a potentially fair reason for the dismissal.
•The employer acting reasonably in dismissing this particular employee in these particular circumstances.
•The employer following a fair procedure, generally reflecting the recommendations of the ACAS Code.
To access this article:
www.shoosmiths.co.uk/news/3605.asp?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ShoosmithsLegalUpdatesRssFeed+%28Legal+updates+from+Shoosmiths+RSS+feed%29&utm_content=Twitter