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23 Managerial L. 2 (1981)

handle is hein.journals/ijlm23 and id is 1 raw text is: =:n7 dua Emlymn L* A spects Dismissal - changes and innovations The burden of proof Whereas the 1978 legislation (1) placed the burden of proof fairly and squarely on the employer's shoulders, in that the determination of the question of fairness was to depend on whether the employer could satisfy the tribunal that he acted reasonably in treating the reason for dismissal as sufficient (2), the 1980 legislation makes a significant change. It provides that in determining whether the dismis- sal was fair or unfair, . .. having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and adminstrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a suffi- cient reason for dismissing the employee, and that question shall be determined in accordance with equity and the substantial merits of the case.' (3) The employer has no longer to satisfy the tribunal that he acted reasonably in treating the reason for dismissal as sufficient: there there- fore exists no burden of proof either way and a redression of the situation prior to 1974 (4) has occurred. It is sug- gested that this change is of little practical significance. The provisions of the 1978 legislation were only of psychologi- cal importance (5). They made the Labour Government and trade unions happy in the knowledge that the employer was confronted with a tougher task when dismissing an employee. Research in the case law has shown however that the tribunals did not treat the 1978 Act (6) provisions in a significantly different manner to those under the 1971 Act. This means that the 1980 amendment imposing no heavier burden of proof either way will make virtually no change in practice. All this does not however mean that the employer's burden of proof has disappeared. Far from it. All the employee need initially do is to show that he has been dismissed. The burden is then on the employer to show and prove the reason for dismissal and that he had reasonable grounds (7) in believing that the employee's conduct con- sisted in one or more of the statutory reasons (8). The small establishment A restoration of the position prior to 1974 on the burden of proof is but one change made to the 1980 legislation; the section also makes an innovation, albeit one which de- veloped through case law. In determining whether the employer acted reasonably in dismissing his employee the tribunal has to take into account the size and administrative resources of the undertaking (9). Dismissal case law had already developed this concept and this statutory innova- tion merely confirms what happens in practice. The impli- cations of this provision is that small establishments will not be held to have acted unreasonably in dismissing an emp- loyee merely because of a more informal dismissal proce- dure than might be expected in larger establishments where such procedure is on a more formal footing. Procedural matters should however not be confused with substantial ones. All this section is concerned with, is with the former, and not the latter. It would for example be impracticable to go through a complicated dismissals appeal procedure in a small establishment where there exists no personnel de- partment and where the management consists of one or two persons. Contrasted with this procedural situation is the substantial situation where the employer, irrespective of the size of the establishment, has an obligation to dismiss only if he has reasonable and fair grounds to do so. In doing so his obligation to adopt a fair procedure remains. le must, for example, investigate the situation in depth; he must hear statements of witnesses; he must inform the employee of the complaint made against him and give him the time to, and chance of, reply, and the opportunity to be represented if he so wishes. Another innovation has been made which again con- cerns the small establishment. This is in connection with dismissal in firms employing twenty employees or less. The qualifying period for claiming unfair dismissal in such firms has been extended to two years ending with the effective date of termination. This extension is subject to certain conditions. Firstly, that at no time during the two year period did the number of employees employed exceed twenty, and secondly, this figure of twenty includes emp- loyees of associated employers (10). The significance of this provision is that during the two year period employees would accumulate service towards the qualifying period for making a complaint of unfair dismissal, but they would be able to exercise their rights only after the expiry of that period (11). A number of points should be noted. First, should the number exceed twenty at any time during the two years in which the employee is qualifying for a claim of unfair dismissal the extended period disappears and there is a reversion to the general qualifying period. This figure is conditional not on the number of employees employed at the time of the employee's dismissal, but rather during the period of his qualification. Second, the total number of twenty includes employees employed by an associated em- ployer. Third, the Act talks of 'employees', and not of independent contractors. This means that an employer and associated employers may employ more than a total of twenty if the excess consists of independent contractos, but then nice legal problems could arise if a court were to find that an independent contractor was in fact an employee (12). Fourth, directors of establishments are generally clas- sed as employees, and therefore they must be taken ac- count of within the limit of twenty. Fifth, the limit includes the dismissed employee himself. Sixth, if the reason for dismissal is on certain medical grounds (13), or an inad- missable reason, that is, dismissal relating to trade union membership, neither the extended periods, nor the general periods apply (14). Finally, as far as the other employee rights under the 1978 Consolidation Act (15) are con- cerned, the extended period does not operate. The Government originally envisaged that this provision was to apply only to small establishments within the first two years of their operation, but the section was extended at the Committee Stage of the House of Commons to include all small establishments irrespective of how long they have been operating. The raison d'etre of the provi- sion stems from the Government's anxiety to give the smal- ler establishment an incentive to recruit (16) without being caught by the legislative unfair dismissal provisions which in all other cases apply to employees employed for fifty-two weeks (17) or over. The fixed term contract Another amendment in the law of unfair dismissal is made by this legislation. The 1978 Consolidation Act pro- vides an exclusion where the dismissal consists only of the expiry of a fixed term contract of two or more years without 2

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