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Unfair
Dismissal
At
some time or another every employer will be faced with the difficult
task of dismissing an employee. This can be a problem both on a personal
level and a legal one. Get the procedure wrong or dismiss when you shouldn't
and you may be faced with an unfair dismissal action. These can be costly
both in terms of direct costs and management time. The notes which follow
may help you avoid the most obvious pitfalls. However some technical
background from the outset will help with your overall understanding.
The
current right not to be unfairly dismissed is contained within the Employment
Rights Act 1996. The right is set out in Section 94 of the Act which
provides that it is every employee's right (subject to qualifying service
requirements, if applicable) not to be unfairly dismissed from their
job.
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If an individual
feels that they have been unfairly dismissed they are entitled as of right
to present a complaint to an Employment Tribunal.
Under
Section 98 of the Act, whether or not the dismissal is fair or unfair
will depend on the employer being able to successfully show two things:-
(1)
that there is a 'potentially fair reason' for the dismissal, and,
(2)
that the dismissal is fair having regard to whether in the circumstances
the employer acted reasonably or unreasonably in treating that reason
as a sufficient reason for dismissing the employee.
In
addition, the Tribunal must apply principles of equity and consider the
substantial merits of any one particular case.
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