Employment Tribunals
• The
most well known of the Tribunal is perhaps the Employment Tribunal
• Along
with Social Security Tribunals it is the one that will most likely affect most
people
• This
type of tribunal has over the last decade evolved from informal to formal and
now much resembles the court
• This
type of hearing was originally known as the Industrial Tribunal and was brought
into effect by the Industrial Training Act 1964
• The
Employment Tribunal is now governed by the Employment Tribunals Act 1996
• The
jurisdiction of the ET has gradually increased to deal with many types of
dispute between employers and employees
• The
first industrial tribunals were concerned with unfair dismissals
• The
remit has now expanded greatly due in large part to the effects of the
Employment Rights Act 1996
• Tribunals
now deal with unfair dismissal, redundancies and complaints of sexual and
racial discrimination and whistle blower complaints
Dismissal
• There
are three types of dismissal
• The
contract of employment is terminated with or without notice
• A
Limited term contract expires without being renewed
• The
contract is terminated by reason of the employees conduct (disciplinary)
Legitimate Reasons for Dismissal
• Redundancy
(post no longer in existence or need to reduce workforce)
• The
conduct of the employee (discipline)
• Retirement
(Soon the be significantly varied)
• Contravention
of duty or statute
• Capability
or qualifications
• Some
other substantial reason
Some Other Substantial Reason
• Protection
of business interests.
• Difficult
personalities and unfortunate manner; Perkin v St Georges Healthcare NHS
Trust (2005)
• Following
corporate takeover; Cobley v Forward Technology Industries PLC (200)
Capability
• The
ability to be able to carry out their duties is a contractual requirement for
employees
• This
can be affected by:
• Illness
• Failure
to maintain qualifications
• Poor
performance
• Incompetance
Misconduct
• Breaches
of discipline fall into two categories
• Misconduct
• Gross
Misconduct
Reasonable Responses
• Where
an employee has breached disciplinary rules the employers response must be
reasonable
• What
is reasonable?
• British
Home Stores v Burchell [1978] IRLR 379
British Home Stores v Burchell [1978] IRLR 379
• Three
part test for fair dismissal:
• The
employer must demonstrate that it believed that the employee was guilty of the
relevant conduct at the time it took the decision to dismiss
• The
employer must demonstrate that it had in mind reasonable grounds upon which to
sustain that belief
• The
employer at the stage at which it formed that belief on those grounds and at
any rate at the final stage at which it formed that belief must have carried
out an investigation into the matter that was reasonable in all the
circumstances of the case
Unfair Dismissal
• Where
an employee has been dismissed the burden of proving the reason for the
dismissal is on the employer; Employment Rights Act 1996 s.98(1)
• The
employer must have acted reasonably and must display sufficient reason for
dismissing the employee
• Certain
reasons for dismissal are treated as automatically unfair
• Trade
Union membership or non membership
• Pregnancy
• Exercising
rights under the Working Time Regulations
• Asserting
a statutory right
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