General Principles of Unfair Dismissal [Video]Posted in : Back to Basics on 13 May 2016
There's considerable statutory protection for employees in Northern Ireland when it comes to the termination of their employment, and unfair dismal claims would perhaps be one of the most common claims that we, as practitioners, would see progressing through the tribunals in Northern Ireland. An employer should keep this in mind when they are considering terminating the employment of an employee.
The laws and procedures around fair dismissal can at times be quite complex. The governing legislation is the Employment Rights (Northern Ireland) Order. And under the Employment Rights (Northern Ireland) Order, generally only a qualifying employee under that legislation may progress a claim for unfair dismissal.
A qualifying employee is someone who has one year's continuous employment with their employer at the date of the dismissal. However, there are certain exceptions to this, and for further information as to who may be deemed a qualifying employee, please see our video on dismissing employees with less than one year service.
The dismissal of a qualifying employee will be unfair unless the employer can show that the reason or at least the principal reason for the dismissal was a potentially fair reason, and there are five potentially fair reasons set out in the Employment Rights Order. These five potentially fair reasons include: dismissal on the grounds of capability; dismissal for a reason which relates to the conduct of the employee; termination of the employment by reason of redundancy, and in these circumstances, there must be a genuine redundancy case.
The forth potentially fair reason is if the employee could not continue to work in the position which they held without contravention of a duty or a restriction imposed by law. And an example of this would be where the continued employment of an individual would be a breach of the immigration rules, for example.
The fifth and final potentially fair reason under the Employment Rights Order is some other substantial reason of a kind such as to justify the dismissal of the employee holding the position which they held. Although this is sometimes seen as a catchall provision, it isn't relied on very often in practice, and it does have limited application. So caution should be exercised before an employer wants to rely on this as the principal reason for dismissing an individual.
If the employer cannot demonstrate that the reason fell within one of these five potentially fair reasons, it will be deemed as automatically unfair. If, however, they can the tribunal that the reason does fall within one of these five potentially fair categories, the next point that the tribunal will consider is whether the employer acted reasonably in dismissing the employee for that reason.
The tribunal will look at two main points when addressing this. The first is whether the decision to dismiss was substantially fair. In other words, did the decision to dismiss the employee fall within the range of reasonable responses that a reasonable employer in those particular circumstances might have adopted.
The second question that the tribunal will ask is whether the procedure followed in dismissing the employee was fair. The employer should be guided by their own internal policies and procedures as best as possible.
Consideration should also be given to the Labour Relations Agency guidance and in particular their Code of Practice on grievance and disciplinary procedures. Most importantly, perhaps, is the employer's obligation to abide by the statutory dispute resolution procedures which remain enforced in Northern Ireland. This is a practice which England and Wales have departed from, and employers who do have employees in Northern Ireland should keep this in mind when considering the dismissal of an individual.This article is correct at 13/05/2016
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.