Suspending Employees from Work.
Effective date of termination.
The effective date of termination
for the purpose of calculating
length of service is, in general,
the date on which dismissal takes
effect, except where the employee
has not been given the required
statutory notice, in which case the
effective date of termination is the
date on which that notice would have
expired if it had been given.
Notice period.
The required statutory notice is
one week if the employee has been
employed for one month but less than
two years, two weeks for two years,
three weeks for three years and so
on up to 12 years. After 12 years'
service the period of notice
required is 12 weeks. The employee
may be entitled to longer notice
under the contract of employment. If
a business is transferred from one
person to another, the period of
employment of an employee in the
business at the time of the transfer
counts as a period of employment
with the transferee and does not
break the continuity of the period
of employment.
Interim relief.
Employees may make an application
to a tribunal for interim relief if
they consider that the reason or
principal reason for their dismissal
was:
- their trade union membership
or activities or their
non-membership of a trade union;
or
- that they performed or
proposed to perform any
functions they had as health and
safety representatives or
committee members or as
employees designated to carry
out workplace health and safety
activities; or
- that they performed or
proposed to perform any
functions they had as an
occupational pension scheme
trustee; or
- that they performed or
proposed to perform any
functions they had as an
employee representative for
consultation about redundancy or
business transfers or as a
candidate to be a representative
of this kind or that they
participated in the election of
such a representative; or
- that they performed or
proposed to perform any
functions they had as a
representative of members of the
workforce or as a candidate to
be a representative of this kind
for the purposes of the Working
Time Regulations 1998; or
- that they made a protected
disclosure within the meaning of
the Public Interest Disclosure
Act 1998; or
- that they exercised or
sought to exercise rights
relating to trade union
recognition procedures; or
- that they exercised or
sought to exercise their right
to be accompanied to a
disciplinary or grievance
hearing or that they accompanied
or sought to accompany a fellow
worker to such a hearing.
If at the interim hearing, the
tribunal decides that they think it
likely that at the full hearing the
employee will be found to have been
unfairly dismissed for one of these
reasons, they may make an order that
the employer temporarily reinstate
or re-engage the employee or for the
contract of employment to be
continued until the complaint of
unfair dismissal has been finally
settled by agreement or decided at a
tribunal hearing.
Applications for interim relief
must be received by the tribunal
within seven days of the effective
date of termination.
Order for reinstatement or
re-engagement.
In deciding whether to make an
order that the employer should
reinstate the employee in the same
job or re-engage the employee under
a new contract of employment, the
tribunal will take into account:
- the employee's wishes;
- whether it is practicable
for the employee to return to
work for the employer (there
may, for example, be
circumstances in which it is not
practicable because
relationships at the work place
have been seriously damaged);
- in cases where the employee
was partly to blame for the
dismissal, whether or not it
would be just to make such an
order.
If the employer fails to comply
with the terms of an order for
reinstatement or re-engagement the
tribunal, on being notified of the
failure, will make an award of
compensation calculated in the
ordinary manner provided for in the
legislation. Also the tribunal will
make an additional award of
compensation to be paid by the
employer, unless the employer
satisfies the tribunal that it was
not practicable to comply with the
order for reinstatement or re
engagement as the case may be.
How awards of compensation are
worked out.
Basic award.
The basic award is calculated by
adding up the following amounts, but
only continuous employment within
the last 20 years can count:
- 1½ weeks' pay for each
complete year of employment when
an employee was between the ages
of 41 and 65 inclusive;
- 1 week's pay for each
complete year of employment when
an employee was between the ages
of 22 to 40 inclusive;
- ½ week's pay for each
complete year of employment when
an employee was below the age of
22.
The maximum number of weeks' pay
that may be awarded is 30. There is
also a maximum week's pay that can
be used to calculate the award. (The
limit on a week's pay may vary from
year to year: the current figure is
given in the document Limits on
Payments (PL827)).
In trade union, health and
safety, employee representative,
workforce representative and
occupational pension scheme trustee
cases (see Interim Relief), there is
a minimum figure for the basic
award. (This minimum may vary from
year to year: the current figure is
given in the document Limits on
Payments (PL827)).
The basic award, including the
minimum award in trade union and
health and safety cases, can be
reduced if the employee:
- contributed to some extent
to the dismissal, or his or her
conduct prior to the dismissal
otherwise justified the
reduction;
- has already been awarded or
has received a redundancy
payment;
- was within a year of age 65
at the effective date of
termination;
- unreasonably refused an
offer of reinstatement or
unreasonably prevented the
employer from complying with an
order of reinstatement;
- has been awarded any amount
in respect of the dismissal
under a designated dismissal
procedures agreement.
Compensatory award.
This award compensates the
employee for the loss suffered as a
result of the dismissal insofar as
the employer is responsible for this
loss. As well as covering loss of
earnings between the dismissal and
the hearing and an estimate of
future loss, the tribunal will also
consider matters such as loss of
pension and other rights and any
reasonable expenses incurred by the
employee as a result of the
dismissal.
The compensatory award is an
amount the tribunal considers just
and equitable in the circumstances,
but there is a maximum compensatory
award in cases of unfair dismissal.
(The maximum compensatory award may
vary from year to year: the current
figure is given in the document
Limits on Payments (PL827)).The
tribunal will reduce the award if it
finds that the employee was partly
to blame for the dismissal or the
employee did not mitigate his or her
loss: for example, by failing to
make a reasonable effort to obtain
another job. Certain payments made
by the employer to the employee, for
example wages in lieu of notice or
an ex gratia payment, will normally
result in a reduced compensatory
award. The compensatory award will
also be reduced by the amount of the
employee's earnings from any other
employment between the dismissal and
the tribunal hearing.
Tribunals have the power to
reduce the compensatory award where
employees have not made use of an
internal appeals procedure whose
existence they were informed of at
or shortly after the time of
dismissal. Similarly the tribunal
can make a supplementary award where
employers have not allowed the
employee to use an appeal procedure
provided by them. The reduction or
supplementary award can be subject
to a maximum of two weeks' pay.
Compensation awards in unfair
dismissal cases where the reason for
the dismissal is that the dismissed
employee made a protected disclosure
under the Public Interest Disclosure
Act 1998, or took action relating to
health and safety are not subject to
a maximum.
Additional Award.
This award compensates the
employee for the additional loss
suffered because of the employer's
failure to comply with a tribunal's
order for reinstatement or
re-engagement. The additional award
will be between 26 and 52 weeks'
pay. There is a maximum week's pay
that can be used to calculate the
additional award. (The limit on a
week's pay may vary from year to
year: the current figure is given in
the document Limits on Payments
(PL827)).
Note: Employment tribunals may
however exceed these limits if the
total compensation awarded (apart
from the basic award) would
otherwise be less than the arrears
of pay element of the original award
with which the employer failed to
comply.
Interest on tribunal awards.
Legislation provides that an
employer who does not pay the
compensation awarded by the tribunal
within 42 days of the tribunal's
decision, will be required to pay
simple interest on the amount
outstanding.
However, in relation to awards in
cases of discrimination on the
grounds of sex, race and disability,
interest begins to accrue from the
day after the day on which the
tribunal's decision is sent to the
parties. However no interest will be
payable if the full amount of the
award is paid to the complainant
within 14 days of the decision being
sent out.
Exemption from the unfair
dismissal provisions.
The parties to a dismissal
procedures agreement may apply
jointly to the Secretary of State to
substitute the agreement for the
unfair dismissal provisions of the
legislation. He may do so if he is
satisfied on all the following
points:
- that every trade union which
is a party to the dismissal
procedures agreement is an
independent trade union;
- that the agreement provides
for procedures to be followed in
cases where an employee claims
that he or she has been, or is
in the course of being, unfairly
dismissed;
- that these procedures are
available without discrimination
to all employees falling within
any description to which the
agreement applies;
- that the remedies provided
by the agreement in respect of
unfair dismissal are on the
whole as beneficial as (but not
necessarily identical with)
those provided by the
legislation;
- that the procedures provide
either for arbitration in every
case, or at least arbitration in
cases where a decision cannot be
reached and the right to submit
any question of law arising out
of a decision to arbitration;
and
- that the provisions of the
agreement are such that it can
be determined with reasonable
certainty whether a particular
employee is one to whom the
agreement applies or not.
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