There are two key questions to answer to establish if an executive has the right to bring a claim for breach of employment legislation: 1) Does the individual have rights under British legislation? 2) Can she enforce the rights in an Employment Tribunal?
This is not as simple as it sounds. Whether the Employment Tribunal has jurisdiction to hear a claim depends on the statute in question and whether the right comes from English or European Union (EU) law. The following sections cover the position on some of the key claims within Great Britain.
Unfair Dismissal Claims in Great Britain
Unfair dismissal law generally provides that in order to dismiss an employee fairly, an employer must have a potentially fair reason to dismiss and provided they do, the dismissal must still be fair in the circumstances of the case. Potentially fair reasons to dismiss include redundancy, capability and conduct.
A fair process will often need to be followed in order for a dismissal to be fair; these include such matters as, reasonable consultation with the employee, a meeting and a right of appeal.
The compensatory award in an unfair dismissal claim is capped by statute and is currently £74,200. Awards for injury to feelings or health for are not available in unfair dismissal claims. Occasionally, an employee who has been unfairly dismissed can seek either their old job back or a comparable job instead.
Certain unfair dismissal claims such as whistleblowing or where dismissal was because of pregnancy or maternity, are not subject to the statutory cap. In such cases, there is no maximum award for unfair dismissal, although you still have to show you have suffered the loss you have claimed. Punitive damages are not available in such claims.
An unfair dismissal claim must normally be filed within three months less one day of the last day of employment.
The following employees receive protection under the law of unfair dismissal:
- Employees ordinarily working in Great Britain – and this depends upon whether they were working in Great Britain at the time of dismissal;
- “Peripatetic” (or internationally mobile) employees whose base is in Great Britain;
- Expatriate employees who work for a British employer in an extraterritorial political or social enclave e.g. a foreign correspondent of a British newspaper; or
- Employees with an “equally strong connection with Great Britain.”
An employee does not necessarily have to fit strictly into one of the four categories above to gain protection. A range of factors may be taken into account when deciding whether a substantial connection with Great Britain exists. The reality of the situation the employee is in, is more important than the fact he is employed by an overseas entity and the fact that the employment relationship was forged in Great Britain with a British entity will not on its own be enough to establish a substantial connection, but it may be a useful factor.
There have been a number of Court decisions relating to employees in different situations which may be relevant to an individual client’s case.
Establishing an employee’s right to bring a claim for unfair dismissal in the Employment Tribunal in Great Britain is a highly fact-sensitive enquiry and specialist legal advice should be sought.