This is an extract of our Unfair Dismissal document, which we sell as part of our Employment Law Notes collection written by the top tier of University Of Law students.
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Unfair Dismissal?Statutory right not to be unfairly dismissed (s.94 ERA 1996) available to employees only (s.230 ERA) Heard in Employment Tribunal only. Criteria:
1. He was dismissed - s.95(1) ERA a. Express dismissal (with or without notice) b. Expiry of a fixed term contract without renewal on the same terms c. Constructive dismissal (fundamental breach of employment contract) 2 He was employed for the qualifying period of service - s.108(1) ERA a. One year (employment began before 6 April 2012) or two years' (employment began after 6 April 2012) continuous employment with the employer in question. Automatically unfair if connected with pregnancy,maternity, paternity leave; health & safety complaints; dismissals relating to enforcement of the Working Time Regs, etc (no qualifying period) Cf. dismissed as a result of TUPE transfer or spentconviction = automatically unfair but still need qualifying period of service. Within the limitation period: 3 months from effective dateof termination subject to ACAS mandatory early conciliation. a. EDT: s.97 ERA employee's notice of dismissal expires (where theyare given notice); the dismissal takes effect if he is dismissed withoutnotice; or a fixed term contract expires without being renewed.b Statutory extension: s.97(2) ERA operates to extend the employee's EDT by their s.86 ERA statutory minimum notice. s.97(2) ERA also applies when calculating the basicaward for unfair dismissal where the employer has not provided sufficient notice under s.86. Tribunal will add the SMN on to the date the employee was dismissed, thus extending the EDT. This may impact on the number of completed years of service and increase the basic award. c s. 145(5) ERA operates in a similar way with regard to redundancy. d General discretion to extend: if not reasonably practicable (s.111(2) ERA) Not excluded: e.g. police or armed forcesBurden on employer to show:a Potentially fair reason for dismissal Capability - incompetence or incapability/unable todo the job properly due to qualifications, ill-health, incompetence - s.98(2)(a) Conduct - disobedience; abusiveness; theft; drunk atwork; persistent lateness; dishonesty, need not be gross misconduct - s.98(2)(b)Redundancy - s.98(2)(c) if statutory definition = s.139(1) ERA:
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