Fairness of Procedure.

The test here is whether the employer used a fair procedure and was it reasonable for the employer to finally decide to dismiss the employee once the procedure had been carried out.

Any Employment Tribunal would consider some of the following:

1. Did the employer give the employee a fair hearing?
2. What evidence was used at the hearing and was it all used?
3. Did the employee have a representative at the hearing or a Trade Union official?
4. If there was more than one employee involved were they all treated in the same way?
5. Had the employee done this before?
6. Did the employer consider warnings; were these used in the past?
7. Did the employer consider the overall performance of the employee; for example did the employee previously have a long record of good work and behaviour?
8. Could the employer have disciplined the employee instead of dismissing them?
9. Did the employee have an effective right of appeal against the decision?
10. Was the whole procedure carried out in the same way as previous procedures, if not how did it differ and why?

If the tribunal does ask the employer to re-engage or reinstate the employee and the employer refuses the tribunal will make these awards against the employer on top of the Basic and Compensatory Awards. The award will be for between 13 - 26 weeks pay up to the maximum of £220 per week.

If the refusal is because of sex or race discrimination the award is for between 26 - 52 weeks.

If the employer refuses to take the employee back the tribunal can also award over these figures if the employee has in fact lost a lot more than this.

If the refusal is due to a trade union reason the tribunal will make a Special Award the minimum figure for this is £2,770.

If the employee asks to be taken back, but the tribunal does not order the employer to do so (usually because it is impractical to order it) the employee can be awarded between £13,775 and £27,500.

If the tribunal does order the employee to be taken back and the employer refuses the employee will be awarded 156 weeks of their actual weekly pay or £20,600, whichever is the highest figure.

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