Dismissal of employees
The origin of UNFAIR dismissal legislation in the form that is found in the Employment Rights Act 2012 can be traced to the International Labour Organization (ILO) Recommendation No 119 which was pronounced in 1963 and concerned standards with respect to termination of employment.
The modern version of international standards on the termination of employment is now reflected in ILO Convention 158 which was adopted by the general conference of the ILO in 1982. Article 4 of that convention appearing under the rubric of Justification for Termination reads:
“The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.”
In 1964, the British government announced its acceptance of ILO Recommendation 119 which was based mainly on the recommendation now reflected in article 4 of the 1982 ILO convention mentioned above.
In 1965 the British government set up a commission to consider whether statutory regulation was appropriate to a widespread problem of industrial action based mainly on dismissal of employees.
The commission considered that the common law which permitted an employer to dismiss an employee whenever he wishes, provided he gives due notice, and with or without reason to be unacceptable.
I reproduce paragraphs 526, 528 and 529 of the commission’s report:
526: “We share in full the belief that the present situation is unsatisfactory. In practice there is usually no comparison between the consequences for an employer if an employee terminates the contract of employment and those which will ensue for an employee if he is dismissed.
In reality people build much of their lives around their jobs. Their incomes and prospects for the future are inevitably founded in the expectation that their jobs will continue. For workers in many situations dismissal is a disaster.
For some workers it may make inevitable the breaking up of a community and the uprooting of homes and families. Others, and particularly older workers, may be faced with the greatest difficulty in getting work at all.
The statutory provision for redundancy goes some way to recognize what is really at stake for an employee when his job is involved, but it is no less at stake if he is being dismissed for alleged incompetence or for misconduct than if he is being dismissed for redundancy. To this it is no answer that good employers will dismiss employees only if they have no alternative.
Not all employers are good employers. Even if the employer’s intentions are good, is it certain that his subordinate’s intentions are always also good? And even when all concerned in management act in good faith, are they always necessarily right? Should their view of the case automatically prevail over the employee’s?
528: From the point of view of industrial peace, it is also plain that the present situation leaves much to be desired. In 1964-66 some 276 unofficial strikes took place each year on average as a result of disputes about whether individuals should or should not be employed, suspended or dismissed. The committee on dismissals analyzed stoppages – whether official or unofficial – arising out of dismissals other than redundancies over this period and found that there were on average 203 a year.
It can be argued that the right to secure a speedy and impartial decision on the justification for a dismissal might have averted many of these stoppages, though some cases would no doubt still have occurred where workers were taking spontaneous action to try to prevent a dismissal being given effect.
529: For all these reasons we believe it urgently necessary for workers to be given better protection against unfair dismissal.”
The commission’s report which was published in 1968 led to the enactment in Britain of the Industrial Relations Act 1971 which introduced unfair dismissals legislation. That legislation is now found in the Employment Rights Act 1996.
Some countries in the Commonwealth Caribbean have enacted unfair dismissals legislation. These include Antigua and Barbuda, St Vincent and the Grenadines and The Bahamas. Of course, Barbados is the most recent example.
Statutory regulation of dismissal procedures is nothing new. Indeed for a very long time in most developed countries the regulation of dismissal has been by statute.
I have traced the development of unfair dismissals legislation in Britain because it is their model that has informed our introduction of unfair dismissal in particular, and employment rights legislation in general.
I should caution, however, that our legislation is not identical to the British legislation and, therefore, as with many aspects of the law English textbooks on the subject although very useful, must be read with the understanding that they represent the law in England.
Our provisions with respect to unfair dismissal are set out in Part VI of the Employment Rights Act 2012 and it is these provisions that will become relevant when a complaint based on unfair dismissal goes before the Employment Rights Tribunal.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]