Unfair Dismissal – What It Is And What Do We Do
The idea behind the law is that dismissals should be fair and reasonable in all the circumstances. That sounds quite reasonable of course but in practice the whole system of enforcing fairness is beyond the reach of most ordinary workers.
One problem is that access to justice for most people now depends on an ability to pay the necessary fees to the Employment Tribunal hearing a case. For unfair dismissal there is a claim fee of £250 and a hearing fee of £950. Whilst there are dispensations for people in financial need most people won’t qualify and these fees are only the first hurdle claimants have to cross.
The second obvious problem, and I say that this knowing that we have lawyers in membership, is that the system has become ‘lawyerised’ with very complex rules. That is to say, the system is hard for most people to understand and the role of case law (previous decisions that become guiding principles) determined by the Employment Appeal Tribunal or a higher court, is such that only specialist lawyers can deal with the most cases. They can be horrendously complicated. Even a lawyer might need a lawyer!
Trying to present a case oneself is seldom a good idea.
There is an old saying that a lawyer who represents himself has a fool for a client! It’s usually true and most of us need clear-headed advice to see the strengths and more important, the weaknesses of our case.
Affinity manage cases from start to finish because we know that most cases are lost well before they ever get to the Employment Appeal Tribunal, indeed even before people are dismissed.
Our aim is to prevent cases if we possibly can but where we can’t prevent dismissals to try to get reinstatement or a settlement.
Some things are automatically unfair e.g. dismissing someone because he or she is a member of a trade union but in other cases there are some important tests to be passed before a dismissal can be fair.
Without complicating this too much, to make a dismissal fair employers need to show three things: that they investigated an allegation reasonably, genuinely believed the individual had committed the offence concerned and arrived at a reasonable decision. But what constitutes a reasonable decision?
Here, employers have a good deal of flexibility and the fact that one employer might dismiss someone for an offence but another might not, does not in itself affect the fairness of a dismissal. Provided a dismissal is within the so-called ‘range of reasonable responses’, the Employment Tribunal cannot substitute its decision for the decision of the employer.
This is where advice at an early stage and advocacy become critically important.
In theory employers are required to follow the Advisory, Conciliation and Arbitration Service (ACAS) Code of Practice on Disciplinary and Grievance procedures.
More sophisticated and larger employers do follow the Code most of the time: some, usually smaller organisations, may not even know it exists and can leave themselves vulnerable at the Employment Tribunal. Failing to follow the Code may indicate to the Tribunal that the procedure followed by the employer was unfair and could lead to higher compensation where the employee wins the case.
Everyone has statutory right to a fair Hearing and an equal right to be represented by the trade union of his or her choice. If the employee believes that the outcome of the Hearing was unfair, he or she must be allowed to appeal against that decision. Again there is a right to be represented.
If the employee is dismissed the case can be taken to the Employment Tribunal once ACAS have been given the opportunity to try to find a settlement between the two sides and failed. This is called Early Conciliation.
What We Do
Hopefully, we will have been involved in a case from its earliest stages so we can do our best to prevent it reaching the point where the employer decides to dismiss the member.
But whether we are or not we allocate a Case Manager to each case and his or her job is to analyse the issues, recommend a course of action and, if necessary, prepare a statement for the hearing with the employer.
An Affinity official will attend the Hearing and will present your case for you, unless of course you want to do it yourself.
If you are dissatisfied with the outcome of the Hearing you can pursue an Appeal and again we will normally produce a statement and present your case.
Should you be dismissed, we will agree an approach with you then manage all contact with ACAS on your behalf and conduct any negotiations. You should be aware that employers do not have to enter into Early Conciliation if they don’t want to.
If Early Conciliation fails, we will advise you on whether your case has a reasonable prospect of success at the Employment Tribunal and where it does we will prepare the case and if necessary appoint a specialist barrister as your advocate. The Union will liaise with the barrister on your behalf and attend the Employment Tribunal hearing with you.
As always please speak to us as soon you think you may need our assistance.
Once you do we will help you present your case to get the best possible outcome. Most important you will receive total support to help make everything as stress-free as possible both during your employer’s internal processes and afterwards, whatever happens.