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The Employment Act 1980 c

13th September 1980
Page 67
Page 67, 13th September 1980 — The Employment Act 1980 c
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Which of the following most accurately describes the problem?

Unfair dismissal

Barrister/haulier Douglas Ainley helps you to sort out Act from fiction

IT IS OFTEN forgotten that the concept of unfair dismissal was introduced by a Conservative government in Edward Heath's celebrated 1971 Industrial Relations Act. The Labour party and the unions were of course opposed to that Act, and on regaining power in 1974, swept it away. Political rhetoric having been satisfied, the unfair dismissal provisions, because they really did assist employees, were promptly re-enacted in the 1974 Trade Union and Labour Relations Act, The 1980 Employment Act implicitly recognises that unfair dismissal is here to stay but also attempts to modify the provisions so that they operate more fairly between employer and employee.

Employers feel that the cards are too heavily stacked against them and that employees have nothing to lose by taking cases to tribunals. In fact tribunal decisions currently show a two to one ratio in favour of the employer and the number of cases being brought to tribunals is now actually declining.

But the feeling that tribunals are somehow biased against employers persists. So the new Act redresses the balance by reducing the burden of proof requirements which employers have to satisfy. To prove a dismissal is fair, employers had to establish: (i) the reason for the dismissal; and (ii) that this was an admissible reason within the statute that is, conduct, capability, redundancy, statutory prohibition or other substantial reason); and (iii) that in all the circumstances they acted reasonably in deciding to dismiss the employee.

The first two requirements remain, the third requirement is modified.

The need to prove reasonableness did cause problems. For example, a driver's standard of driving may be such that he is clearly incapable of doing his job, which is enough reason for dismissal. But if the employer failed to show that he had made clear to that driver what standards were expected of him or the employer had tolerated similar bad driving in other drivers, then dismissal may be unfair because the employer could not prove he acted reasonably.

In future employers will not have to prove "reasonableness" — this will be decided by the tribunal on the facts of the case and either side may be asked to show that they acted reasonably. If, in a small firm, a , driver has been off sick for long periods and it is essential that he is replaced, you will not have to go to such lengths to establish the reasonableness of a dismissal since the necessity of replacing him will be apparent to the tribunal from the facts.

When deciding whether employers acted reasonably, tribunals must also now take into account "the size and administrative resources" of the firm involved. It does not mean that small hauliers can tear up all their disciplinary or grievance procedures (assuming they actually have any — if not, get some), rather it recognises that a firm employing three drivers will have less sophisticated procedures than the NEC.

Tribunal procedure will, as from October 1, 1980, be simplified to counter employers' criticism that they have become too formal and legalistic. Under new Regulations, tribunals will be able to conduct cases in whatever manner they think appropriate and hold pre-hearing assessments to advise either party that their case is weak and that if they persist, costs could be awarded against them.

Tribunals will be able to award costs against parties who bring or conduct cases "unreasonably" — a real change designed to discourage employees bringing weak cases against employers.

Any changes which bring tribunal proceedings back to the original intention that they should be intelligible to any sensible person and not just to lawyers, must be welcomed by all employers.


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