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covered all ACAS procedure for employment law
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1. An employee first must meet certain conditions to bring a claim forunfair dismissal
2. An employer must then show that the reason for the dismissal is
procedurally fair and the employment tribunal will then decide whether
or not the dismissal was fair in all the circumstances
3. If the dismissal is found to be unfair, the tribunal will order the employer
to either re-engage or reinstate the employee, or more commonly, pay
compensation
4. The tribunal may increase or decrease awards of compensation by up to
25% in the event of an unreasonable failure to comply with ACAS
Actual dismissal
- The employer has terminated the contract without notice and
communicates this in writing; this is effective dismissal
Unfair dismissal
- Before dismissal an employee you need to ensure you have a potentially
fair reason
- ‘An employee has the right not to be unfairly dismissed by his
employer’ ERA 1996 S.94 (1)
S94(1) ERA 1996 – every employee has the right not to be fairly dismissed.
However to qualify, need to meet specific criteria:-
An employee;
Been dismissed;
Fulfil the requirements for continuous employment;
Not within an excluded class;
Work must have been done in Great Britain or must have sufficient
connection to Great Britain;
Still within the limitation period;
ACAS Pre-Claim Conciliation; and
Complied with the ACAS Code of Practice
, Burden of proof
Once employee has proved s/he was dismissed, burden of proof shifts to the
employer (s98 ERA 1996) to show:
– the real reason for the dismissal;
– that it falls within one of the five potentially fair reasons for dismissals.
The Tribunal then has to decide whether the employer acted reasonably
in all the circumstances of the case on the evidence presented
– Iceland Frozen Foods Ltd v Jones (1982).
CONDUCT s.98 (2)
- This may be either a single act or series of acts that are less serious
The best known guidance about assessing the fairness of misconduct dismissals
comes from the Burchell case
- the fairness of a dismissal depends on ‘whether in the circumstances the
employer acted reasonably’
The three fold tests can be summarised as follows;
- The employer believed the employee to be guilty of misconduct
- The belief was based on reasonable grounds
- At the time the belief was formed, it had carries out as much
investigation as was reasonable
The concern is that even if the employer believes they have satisfied all these
requirements, a tribunal will still need to decide whether the dismissal was a
reasonable sanction.
Substantively and procedurally fair
Polkey v AE Dayton services Ltd – in order to act reasonably, an employer has
to follow fair procedure when dismissing an employee.
ACAS – Although it is not legally binding, it is evident that this best practice
was not followed which makes the organisation liable to proceedings.
- Issues were not dealt with promptly and consistently
- Not all facts and witnesses were established before taking action
- There was no initial meeting held with the employee
- The employee was not accompanied
- The employee was not given the opportunity to fairly state their case as
the decision was predetermined
Right to a fair hearing
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