Legal Article - Employment Law

Reason for Dismissal of An Employee

The law presumes that where a dismissal occurs and the employee seeks a redundancy payment then the reason for dismissal is redundancy. If the dismissal was not wholly or mainly due to redundancy the onus is on the employer to prove this, an industrial tribunal is only concerned with whether the reason for the dismissal was redundancy; investigate whether the reason put forward by the employer is genuine.

If industrial action causes the closure of a business and employees thus lose their jobs, the reason would be redundancy. Where the employer asks for volunteers for redundancy in a genuine redundancy situation, voluntary redundancy would qualify as a redundancy dismissal.

Voluntary retirement due to a reorganisation but where no loss of jobs occurs would not be a redundancy dismissal.

If a fixed-term contract is not renewed because of redundancy this would be a redundancy dismissal, unless there is a written clause in the contract whereby the employee agrees to forego their redundancy rights. This is only valid for contracts of two years of more and if the contract runs the full term.

When fixed-term contracts of apprenticeships or training expire and the employer cannot offer further employment, the reason for the contract terminating is not redundancy, but simply that the contract finished i.e. “a once in a lifetime agreement”.

NOTE: Contracts of apprenticeship or training that finish when the apprentice or trainee achieve a qualification (e.g. NVQ Level 3) and not simply because a fixed period of time has expired, would not be classed as a dismissal or resignation, but simply termination by performance.

Published: 27 May 2011

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