A Central Element Of Individual Statutory Law Employment Essay

Published: 2021-08-06 03:45:05
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In this case, Dave is the applicant who bears the burden of proof, showing that he is qualified to bring an unfair dismissal claim. First and foremost he must be an employee of the store as contained under section 230(1) of ERA. This section defines an employee as being someone who has entered into or works under a contract of employment. It seems that he is an employee of the store and he is holding a position of a ‘manager’, a phrase suggestive of permanent employment with the store ‘Pamper’. Another requirement is that he must have completed a minimum qualifying period of continuous employment which is one year, but was recently extended to two years for anyone who started work on or after April 2012. Since he has been working there for 11.5 years, evidently meets the criteria for an unfair dismissal claim. As far as can be seen, he is not excluded for any other reason such as being a share fisherperson.
Moreover, it must be established that he has brought the claim within three months of the effective date of termination of the employment contract. Based on the scenario, the date he was terminated which is on the 26th May 2012 and his submission for tribunal claim on the 25th August 2012 fits the three months qualification period precisely. The question states that he has been dismissed and that dismissal has instant effect. Dave is therefore dismissed within the section 95(1)(a) of ERA. Therefore, the onus of proof of dismissal lies on the applicant. Therefore, he may qualified to bring an unfair dismissal claim to employment tribunal as provided under section 94 of ERA which gives every employee the right not to be unfairly dismissed.
Once the employee has proved that he was dismissed the burden of proof then passes to the employer under section 98 of the ERA which normally they will have no difficulties. Therefore, the employer must show the principal reason for dismissal. On the facts the reason for the dismissal is theft which constitutes gross misconduct as seen in the case of Sinclair v Neighbour [3] . It has to be noted that generally there may be a clause in the contract of employment to have similar effect. Accordingly, ACAS handbook on Discipline and Grievances at work (2009) provides in stating that there can be dismissal without notice for gross misconduct when there is theft from the employers.
The next stage for the tribunal is to assess the reasonableness and unreasonableness of the dismissal. The onus at this point is neutral, in other words, no party bears the burden but the tribunal must make up its mind and fairness is a matter of fact, not of law. On the facts of the present case the issue of unfairness is the principal difficulties, ERA, s.98(4) states, inter alia, that the question whether the dismissal was fair must be determined in accordance with equity and the substantial merits of the case and regard must be had to size and the administrative resources of the employers. Several issues arise for comment. Though in general run of the cases the employee should be informed of the allegation against him, there is no need to do so if he is caught red handed.
However, ACAS Code of Practice on Disciplinary Practices and Grievance Procedures 2009 recommends among other things like the right to reply and a right to appeal. He has been provided for is not necessarily fatal to the employer’s defence but can be taken into account by the tribunal when assessing reasonableness and in an increase up to 25 per cent may be awarded to applicants if the employers break the code. This has been brought forward by the section 3 of the Employment Act 2008 [4] ’s introduction in new Trade Union and Labour Relation (Consolidation) Act 1992 [5] by the virtue of section 207A. In the Dave’s scenario, his employers did gave him the right to reply and right to appeal however, he refused to take up the offer to appeal on the basis that he would not receive a fair hearing.
Besides the Codes, tribunals usually follow the guidelines laid down in British Home Stores Ltd v Burchell [6] which was itself a case of theft. Although the case is only of Employment Appeal Tribunal (EAT) authority, it has been approved by the Court of Appeal on several occasions including in W. Weddel & Co Ltd v Tepper [7] . Importantly, Burchell provides a threefold test, which is;
Did the employers believe the reason they gave for dismissal? Here, in the case of Dave, they did believe that were dismissing for theft.
Did they have ‘in mind reasonable grounds upon which to sustain that belief?’ Here, they did have such grounds because Dave has been witnessed by other employees holding a store’s good without paying them.
Did they carry out ‘as much investigation into the matter as was reasonable in all of the circumstances of the case?’ on the facts a proper investigation should have revealed the true situation. Therefore, It may be possible that dismissal was unfair for this reason.
The third question is a pointer to the importance of procedural fairness. An otherwise fair dismissal can be rendered unfair when the procedure was unfair unless going through that procedure would be utterly useless or futile. At this stage the tribunal must consider under section 98(4) of ERA, whether the employer acted reasonably in actually ‘activating’ the reason in question and dismissing the employee. This demonstrates clearly that it is not enough to show that the employer had a reason which would normally justify dismissal but it has to be shown that, in all the circumstances of the case, it actually justified the particular dismissal in question.
Therefore, in applying the test of fairness, the tribunal will consider the reasonableness of the employer’s conduct, not the injustice or lack of it done to the employee. This fundamental principle was reaffirmed by the House of Lords in Polkey v AE Dayton Services Ltd [8] , probably the most important decision on unfair dismissal since W. Devis & Sons Ltd v Atkins [9] . In appropriate cases, the ‘test of fairness must be interpreted, so far as possible compatibly with European Convention on Human Rights’ [10] .
Moreover in the case of A v B [11] , it was held that inconsistent statements which were relevant to the credibility of a witness were withheld, the EAT held that this was prejudicial to the employee and a factor in finding that the dismissal was unfair. Generally a reasonable investigation is where facts are in dispute would involve talking to any witness, gathering relevant documents and crucially, putting the charges to the employee [12] .
On the facts, the employer of Pamper took conflicting statements from the witnesses. The store detective mentioned that he crossed the boundary without putting down the perfume not concealing it. However, due to some strain in the relationship between Dave and his deputy manager Janice, she mentioned that he concealed the perfume in his jacket when he left the store which is untrue has been taken by the employer for his dismissal. The employers also took Dave’s admittance of talking the goods out of the shop but did not care about his intention at that moment. Therefore, it is quite apparent that no proper investigation was undertaken and no account has been taken of Dave’s employment record, which may be exemplary.
Moreover, by the virtue of section 10 of Employment Relation Act 1999 [13] gives workers the right to make a reasonable request to be accompanied during a disciplinary or grievance hearing. This can be chosen by the employee and such person can be an official of a trade union or another of the employer’s workers. In Dave’s scenario, he requested for his solicitor to be present during the discplinary hearing but this was refused by the employer. This is because in the hearing the employee can have another person present to assist but the other person cannot be a lawyer acting in a professional capacity. However, the employer did offered him to bring a colleague or a trade union representative but he wanted to attend alone. Therefore, it is clear that the employer has been acted fairly in the proceedings.
Beyond procedural fairness the tribunal must not substitute its own decision for that of the employers as seen in the case of Iceland Frozen Foods Ltd v Jones [14] . Although Iceland’s ‘range of reasonable responses’ test came in for criticism just around the turn of the millennium, it was strongly reaffirmed by the Court of Appeal in HSBC v Maden [15] . The development of this ‘range of reasonable responses’ approach has been a major feature of unfair dismissal law and has had the effect of broadening the area of managerial discretion, it does not apply a test entirely subjective to the respondent employer, but it does enjoin the tribunals to look at the matter from an employer standpoint generally. This approach was approved by the Court of Appeal in British Leyland (UK) Ltd v Swift [16] , Therefore, if the current employers did dismiss and a reasonable employer on the same facts may have not dismissed, the dismissal is unfair.
Consequently, if an employee is unfairly dismissed, as the circumstances of Dave, he is entitled for a remedy. The tribunal must explain the potential remedies such as reinstatement, re-engagement and compensation, which comprises a basic and a compensatory award. The tribunals must look at the remedies in the order stated. Reinstatement within s.114(1) of ERA is possible on the facts. Therefore, trust and confidence may remain and the employee may well wish to reinstated and it does not seem impracticable to reinstate. The tribunal has to take into account any contributory fault by Dave. If reinstatement not ordered, the tribunal is to consider re-engagement next. It may be that there is not a job similar to that of company.
If neither remedy is awarded, the tribunal deals with compensation. The basic award is calculated on the same basis of redundancy payment subject to a maximum week’s pay of £400 from 1st February 2011. There is a formula for working out the total based on age, length of continues employment and the week’s pay. Currently, the maximum pay is £12,000. However, misconduct may lead to a reduction in the sum. In addition the compensatory award is calculated under the heads laid down in Norton Tool Co Ltd v Tewson [17] , subject to a maximum of £68,400 from 1st February 2011. This sum is also subjected to deductions, in particular in respect of failure to mitigate and contributory conduct.
Based on the facts of the case, Dave will be successful in his claim because the issue of fairness is one for the tribunals. Therefore, he will be entitled for the remedy.

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