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Dismissal

Q

I have been in employment for eighteen months and my employer has just told me that he is dismissing me for being late again, can I do anything?

A

Since April 2005 employers and employees alike have been required by law to exhaust at least the basic internal procedures for resolving matters of discipline  or dismissal. Failure to exhaust the minimum procedures will result in penalties which can be imposed by the Industrial Tribunal, if the case gets that far, on either the employer or the employee. The basic components regarding putting the issue in writing, holding a meeting and giving a decision and providing an appeal if requested, are elaborated upon in the Agency’s Code of Practice on Disciplinary and Grievance procedures.

Where a problem or disagreement in the workplace is likely to lead to a tribunal claim the Labour Relations Agency will often be able to help employers and employees find a solution that is acceptable to both. This service is known as Pre-Claim Conciliation. It can save you the time, stress and expense normally associated with a tribunal claim.  You can find out more about Pre-Claim Conciliation at the following link or by contacting our Helpline service:

http://www.lra.org.uk/index/resolving-disputes/pre-claim_conciliation.htm

In terms of your legal rights, if you are dismissed or are under notice of dismissal you may be able to take a case to an Industrial Tribunal (or you may be able to use The Labour Relations Agency Arbitration Scheme). You will need to obtain an application form, called an ET1, from he Office of Industrial Tribunals and Fair Employment Tribunals, complete it and return it to t hem (address on form) within 3 months of the effective date of the termination of your contract (don’t leave it too late, and check when the ‘clock starts to tick’ regarding the 3 month time limit). Once you have lodged your claim an officer from the Labour Relations Agency will contact you and he/she will try to resolve your complaint before going to tribunal.

This process is known as conciliation and is a very effective method of dispute resolution with an 80% success rate. If you require more information on disciplinary matters or grievance matters go to the Agency’s revised  Code of Practice on Disciplinary and Grievance Procedures which came into effect on 3 April 2011, available to download from here,  Code of Practice on Disciplinary and Grievance procedures.

If our answer or publications do not provide you with enough information please contact the Agency's Head Office: 028 9032 1442 - or our Regional Office: 028 7126 9639.

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Q

I recently dismissed an employee for repeated lateness.  He wouldn’t change his ways despite being all through our disciplinary procedure to the final warning stage.  He was even given a right of appeal and his only appeal was to apologise and promise, yet again, to amend his ways.  He has now phoned me for written reasons as to why he was dismissed.  Do I have any duty to give them?

A

Every employee has the right, after 1 year in continuous employment, to request a written statement of the reasons for dismissal. The onus is on the employee to make the request, which can be made in writing or verbally. The statement should be issued by the employer within 14 days of the date of the request. Failure to comply properly with the request will result in an award of two weeks’ pay being made against the employer if the issue is referred to and decided in the claimant’s favour by an industrial tribunal. The tribunal might also choose to make a declaration of what it finds to be the employer’s reason(s) for dismissal.

An employer can fail to comply properly by either unreasonably delaying or refusing to provide a written statement, or by providing a written statement that is considered inadequate or untrue. In particular, the statement should accurately show the reason(s) for dismissal; as such a request can often precede an unfair dismissal complaint. The request can be made as soon as notice has been given. This right does not apply where the employee terminates the employment, unless the employee resigns after the employer has given notice of dismissal. The issue of dismissal is perhaps the most complex field in employment law and thus it is difficult to condense into a single publication. Therefore, we recommend that if you have a specific query that you contact the Agency.

Further information is available from nidirect (opens new window) and nibusinessinfoo

If our answer or publications do not provide you with enough information please contact the Agency's Head Office : 028 9032 1442 - or our Regional Office : 028 7126 9639.

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Q

I was employed in a local shop for 6 months and was dismissed yesterday for till shortages. Although I denied it my employer still dismissed me; is there anything I can do about this?

A

The Employment Rights (Northern Ireland) Order 1996 states that an employee must have one complete year’s service to pursue a claim for unfair dismissal against their employer.  There are exceptions to this requirement, for example, if the reason for dismissal was for asserting a statutory employment right  or discrimination (see question below). However, if the reason for dismissal was related to conduct or capability in carrying out a role then unfortunately if you do not have one complete year’s service you cannot pursue an unfair dismissal claim against your employer. Therefore, while it may feel to you that this dismissal is unfair, it may not be unlawful.

Further information on Unfair Dismissal is available from nidirect (opens new window) and nibusinessinfo(opens new window)

If our answer or publications do not provide you with enough information please contact the Agency's Head Office: 028 9032 1442 - or our Regional Office: 028 7126 9639.

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Q

I found out recently that I am entitled to 5.6 weeks holidays and when I asked my employer about this I was told that he didn’t want to employ trouble makers and sacked me.  I was only there for a month, so don’t know if there is anything I can do.

A

The Working Time Regulations (Northern Ireland) 1998 (as amended) provides workers with an entitlement to 5.6 weeks annual leave per year.  Dismissal for asserting your right to this entitlement is viewed as automatically unfair.  The Employment Rights (Northern Ireland) Order 1996 states that an employee who feels that they have been dismissed unfairly for asserting a statutory employment right is not required to have the normal one year’s service to bring such a claim.  

Where a problem or disagreement in the workplace is likely to lead to a tribunal claim the Labour Relations Agency will often be able to help employers and employees find a solution that is acceptable to both. This service is known as Pre-Claim Conciliation. It can save you the time, stress and expense normally associated with a tribunal claim.  You can find out more about Pre-Claim Conciliation at the following link or by contacting our Helpline service:

http://www.lra.org.uk/index/resolving-disputes/pre-claim_conciliation.htm

The court that deals with employment claims is called the Industrial Tribunal.  You will need to obtain an application form, called an ET1, from  the Office of Industrial Tribunals and Fair Employment Tribunals complete it and return it to them  (address on form) within 3 months of the effective date of the termination of your contract (don’t leave it too late, and check when the ‘clock starts to tick’ regarding the 3 month time limit). Once you have lodged your claim an officer from the Labour Relations Agency will contact you and he/she will try to resolve your complaint before going to tribunal.  This process is known as conciliation and is a very effective method of dispute resolution with an 80% success rate.

If you require more information on Disciplinary matters or Grievance matters go to the Agency’s Code of Practice on Disciplinary and Grievance procedures. which came into effect on 3 April 2011

If our answer or publications do not provide you with enough information please contact the Agency's Head Office: 028 9032 1442 - or our Regional Office: 028 7126 9639.

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Q

We are contemplating dismissing an employee for ill health absence.  She has been off for over a year now and does not appear to be able to return. We want to make sure we do the right thing so what should we do?

A

Dismissal on the grounds of ill health is viewed as dismissal for capability reasons and is potentially fair, subject to completion of the Statutory Dismissal and Disciplinary Procedure (effective from April 2005).  An employer must also show that in dismissing an employee on the grounds of ill health, they took all reasonable steps to facilitate the individual’s’ return to work and carried out regular consultation with the employee.  Advice and guidance on dealing with ill health absence and dismissal is available in the Agency Advisory Guide – Advice on Managing Sickness Absence and the Code of Practice on Disciplinary and Grievance procedures.

If our answer or publications do not provide you with enough information please contact the Agency's Head Office: 028 9032 1442 - or our Regional Office: 028 7126 9639.

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Q

We have a driver who recently lost his licence due to a driving ban; can we dismiss him for this?

A

Dismissal by an employer of an employee in circumstances where the continued employment would be illegal, for example, forfeiture of a drivers’ licence or loss of a permit, which allows an employee to work legally in the UK, is potentially fair.  

In the case of a driving ban, an employer should first consider (before dismissal), the likely duration of the ban; whether it affects the whole or part of the employees work; and whether the employee can be readily deployed.  In other words if driving is only part of an employee’s job and there are other alternative duties that can be allocated then it may be unfair to dismiss in those circumstances.  However, if driving duties comprise 100% of the employee’s duties then in these circumstances, if other work is not available it may be fair to dismiss.

Further information is available from nidirect(opens new window) and nibusinessinfo(opens new window)

If our answer or publications do not provide you with enough information please contact the Agency's Head Office : 028 9032 1442 - or our Regional Office : 028 7126 9639.

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Q

I was made redundant a month ago and although I felt it was a bit unfair at the time, I believed my employer when he told me there was no work.  However, I saw an advertisement in the Job Centre last week for my job and want to know if there is anything I can do to challenge my employer on this?

A

Dismissal on the grounds of redundancy occurs where, for example, the business in which the employee is employed is closed, or the employee’s particular workplace closes, or, there is a diminishing need for employees to do work of a particular kind.  In these circumstances a dismissal on the grounds of redundancy is potentially fair subject to reasonable consultation and, where appropriate completion of the Statutory Dismissal Procedure.  

In the absence of a genuine redundancy situation, dismissal on these grounds could be potentially unfair.  If you feel that the post that you held was not actually redundant or you were unfairly selected for redundancy then you may be able to challenge this as an Unfair Dismissal at the Industrial Tribunal.  To do so you must have one year’s complete service at the effective date of termination.  

However, if you felt that you were selected for redundancy for potentially unlawful reasons, such as carrying out trade union duties or activities or,  taking action on health and safety grounds, then you will be generally exempt from the service requirement of one year prior to taking unfair dismissal action.  Further information on your rights in dismissal situations is available ifrom nidirect(opens new window) and nibusinessinfo(opens new window)

Where a problem or disagreement in the workplace is likely to lead to a tribunal claim the Labour Relations Agency will often be able to help employers and employees find a solution that is acceptable to both. This service is known as Pre-Claim Conciliation. It can save you the time, stress and expense normally associated with a tribunal claim.  You can find out more about Pre-Claim Conciliation at the following link or by contacting our Helpline service:

http://www.lra.org.uk/index/resolving-disputes/pre-claim_conciliation.htm

The court that deals with employment claims is called the Industrial Tribunal.  You will need to obtain an application form, called an ET1, from  the Office of Industrial Tribunals and Fair Employment Tribunals complete it and return it to them  (address on form) within 3 months of the effective date of the termination of your contract (don’t leave it too late, and check when the ‘clock starts to tick’ regarding the 3 month time limit). Once you have lodged your claim an officer from the Labour Relations Agency will contact you and he/she will try to resolve your complaint before going to tribunal.  This process is known as conciliation and is a very effective method of dispute resolution with an 80% success rate.

If you require more information on Disciplinary matters or Grievance matters go to the Agency’s Code of Practice on Disciplinary and Grievance procedures. which came into effect on 3 April 2011

If our answer or publications do not provide you with enough information please contact the Agency's Head Office: 028 9032 1442 - or our Regional Office: 028 7126 9639.

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Q

Can my employer dismiss me during the probationary period?

A

Employers will often use probationary periods to assess the employee’s performance and suitability for employment. Case law suggests that regardless of how long the probationary period is, an employee does not have the right to be employed for that full period and in most cases an employer will have the right to terminate the contract during the probationary period.  However an employer must ensure that they follow the Statutory Dismissal and Disciplinary procedure if terminating a contract of employment during the probationary period.  If, however, you have one complete years’ service and feel that the decision to dismiss was unfair you may have a right to challenge this as an Unfair Dismissal at the Industrial Tribunal.

Further information on Unfair Dismissal is available from nidirect(opens new window) and nibusinessinfo(opens new window)

If our answer or publications do not provide you with enough information please contact the Agency's Head Office: 028 9032 1442 - or our Regional Office: 028 7126 9639.

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