Issue 2, 27th November 1995: Unfair Dismissal
By Sonya Clarke.
International law firm mergers are suddenly fashionable---rumoured links between Freshfields and the US firm Davis Polk Wardell and the joint venture between Linklaters & Paines and Schon Nolte Finkeinberg & Clemm of Frankfurt are indicative of the increasingly international nature of legal practice away from the High Street.
The UK Young Women Lawyers Group held a constructive debate on training opportunities in the profession on 19 October with speakers from London firms Freshfields and Stephens Innocent, The Trainee Solicitors Group and the Bar. Watch here for future events.
A decision from the House of Lords on the Court of Appeal ruling of July 31st of this year (R v Secretary of State for Employment (ex parte Seymour-Smith and Perez)---that the UK law on unfair dismissal from employment is incompatible with European rules on equality---is expected in the next few weeks. The Court of Appeal found that the two-year continuous-service requirement for an employee to claim unfair dismissal contained in the Employment Protection (Consolidation) Act 1978 creates a disparity between the employment rights of men and women. Women are, as a general rule, less likely than men to hold down a job for a period of over two years. If they are unreasonably `let go' from such short-term employment they have no recourse to an industrial tribunal.
The House of Lords will address the issue of whether the adverse impact of the two-year rule on women is `considerable' and as a result constitutes indirect discrimination, contrary to the European Equal Treatment Directive. If the Lords takes this view then the UK will have to abandon a legacy of Norman Tebbit, Secretary of State for Employment in 1985. It is likely that the qualifying length of service will be drawn back to the one year qualifying period of the early 1980s. Industrial tribunals should expect a backlog of complaints of unfair dismissal.
When or if the change in the law occurs, wise employers who have not already done so should examine their in-house procedures for dealing with breaches of contract by employees. Indeed, this is advisable even if the Court of Appeal decision is quashed. Avoiding the minefield of expense, time and grievance of an industrial tribunal (and possibly the higher courts beyond) can only be beneficial to employers and employees alike.
In the UK, a dismissal of an employee may be unfair if it is not ``fair and reasonable'' in all the circumstances. This fairness and reasonableness is a matter of fact, but employers should consider the adequacy of the reason for a dismissal and beware of hasty firings and, for that matter, hirings. Selecting suitable employees in the first place reduces the number of employer--employee disagreements. A one-off breach of contract by an employee, or a series of incidents or pattern of behaviour that constitutes a breach of contract can lead to an employer taking sudden, regrettable action. Both situations could be dealt with by reasonableness and practical, pre-emptive steps on the part of the employer, minimising the number of dismissals that might result in a claim of unfairness by the employee.
Recommended measures include giving all employees written terms and conditions
of employment. It is not in an employer's interest not to define his
employees' rights in writing. If he does not, an industrial tribunal will
determine them for him in the event of a dispute. Effective disciplinary
procedures of which employees are made fully aware are also essential for any
employer, large or small, and allow both sides a better understanding of their
respective positions. They will enable more disputes to be dealt with before
they reach the courts.
Yugoslavia's War Crimes Tribunal---article on legal implications.