Unfair Dismissal
An Employee's Perspective
There are four potential reasons for a fair dismissal:
- Misconduct: an individual can be summarily dismissed (sacked on the spot) for one substantial act of misconduct or they could be dismissed for repeated acts of misconduct.
- Lack of Capability: if an individual cannot do their job adequately then this can lead to a fair dismissal.
- Redundancy: in a situation where an employer’s need for staff to perform work of a type the employee is employed to do ceases or diminishes then this can potentially lead to a fair dismissal.
- Some other substantive reason: justifying dismissal not falling into any of the three mentioned categories.
Let's Look at a Typical Unfair Dismissal Situation
I got the sack what can I do about it?
See someone who can advise and direct you on the appropriate steps you need to take in order to safeguard your position. If you are a member of a trade union, your trade union may well be able to assist in the first instance. You should also consider taking legal advice at the earliest opportunity since strict timetables apply in the case of employment protection legislation. Remember that in the event that you require to lodge an application to an employment tribunal claiming unfair dismissal you have a period of three months from the date of dismissal to do so. In the event that an application is lodged late the tribunal will only accept the application in very exceptional circumstances.
What information will my solicitor need?
If you have a written contract this should be produced immediately. Similarly, if you have not obtained from your employer a written statement for reasons of your dismissal your solicitor will need to know as soon as possible so that written reasons for dismissal may be obtained from your employer. If your employer is asked for such a statement then in terms of the employment legislation then your employer must produce this. If your employer delays or doesn’t produce a statement at all, they can be penalized.
Right, where do I go from here?
In the event that you have exhausted your employers' own internal appeal procedures then it has to be determined whether or not you have a sound claim and whether or not an employment tribunal has jurisdiction to hear your claim. Normally you will require to have been in continuous employment with the same employer for a period of twelve months immediately prior to the dismissal although there are several important exceptions to this rule, and your solicitor will be able to advise you on these.
OK where to now?
You must obtain what is known as a Form IT1. This form has to be completed and lodged with the Central Office of Employment Tribunals within the prescribed deadline. IT1's are obtainable from your local employment office, the Central Office of Employment Tribunals at the Eagle Building, 215 Bothwell Street, Glasgow G2 7TS (Telephone 0141-204–0730). Your own solicitor in all probability will also have a supply of these forms and will be able to provide assistance in completing the form.
Once the application has been lodged, what happens then?
The Central Office of Employment Tribunals (COET) will register your application and send a copy of it to your employers. If your employers intend to resist your claim then they have fourteen days to lodge a formal response known as a notice of appearance with the tribunal office. You will get a copy of the notice of appearance and a date will be fixed for a formal hearing. COET will send a copy of your application and your employers’ response to ACAS (Advisory Conciliation and Arbitration service), an independent body who will try and mediate between you and your employers to see if your claim can be settled without the need of a formal hearing. Any settlement negotiated by ACAS is set down in writing and is contractually binding on you and your employer.
If my claim goes to a formal hearing what’s the procedure at such a hearing?
An employment tribunal is a special statutory form of court but generally there is a lesser degree of formality than would be the case in a normal courtroom. Normally, three individuals will sit to hear a case. The Tribunal may comprise a legally qualified chairman with two lay members one of whom will have an employer’s background and one of whom will have an employee background. In some cases a chairman sitting alone will hear the hearing. At the hearing you will have the opportunity to give evidence and call witnesses and give evidence in person and your employers or their representative will have the opportunity to cross-examine you and your witnesses. After you have led your evidence in support of your claim your employers lead their witnesses and you or your representative have the chance to cross-examine them. At the conclusion of the evidence both sides make submissions in support of their case to the tribunal. In due course the tribunal will issue a decision to both parties.
If I lose the case before the tribunal is that the end of matters?
Not necessarily. You may have a right to appeal to an employment tribunal but such an appeal will only be permitted on a point of law.
If I am successful in my case before the tribunal what happens then?
That depends on what remedy you asked for when completing the IT1 Form. If you asked for reinstatement or re-engagement then in the former case your employers must give you your old job back. If you asked for re-engagement your employers must re-employ you but not necessarily in your old job. In the event that you asked for compensation the tribunal will issue a decision ordering your employers to pay to you the amount of compensation that the tribunal assesses as being appropriate in the circumstances.
How much is all of this going to cost me?
At the very outset when you consult your solicitor, it will need to be ascertained whether you may be eligible for legal advice and assistance under the scheme operated by the Scottish Legal Aid Board. Your solicitor will discuss with you how any case will be funded and what liability (if any) may fall upon you for costs.
This article was written by Bryan McLachlan of Hewats.
It is reproduced here with permission. Hewats maintain an extensive and up to date
reference library on all aspects of employment law.
The above is intended only as a general outline of the law
of redundancy for the guidance of employees and is not to be regarded as a definitive statement of the law.
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