Barry Johnson was employed by Marney Superstores as a warehouse operative at their Croydon premises from December 1997 until his dismissal 6 weeks ago (April 2003). He was dismissed on the grounds of gross misconduct, having been seen fighting with another employee in the warehouse.
Mr Johnson is claiming unfair dismissal with an Employment Tribunal. The right not to be unfairly dismissed was made within the Employment Rights Act 1996. An application for unfair dismissal must be issued within 3 months of the date of termination of the employment unless a case can be made to the tribunal stating that it was not reasonably practical to do this within this time.
There are certain categories of employees who are excluded from bringing an unfair dismissal case such as the police and the armed forces, people who have reached the normal retiring age (or 65 if there is no normal retiring age) and people who ordinarily work outside of the UK.
The employee bears the onus of establishing three main points of their claim; that they were employed by the employer, that they were continuously employed by the employer for a period of twelve or more months and that they were dismissed.
In a number of specified circumstances, a dismissal is deemed to be automatically unfair. Generally no qualifying period of service is required in these cases and employees in excess of the normal retirement age are not excluded. In brief, unfairness is judged where the principal ground for the dismissal relates to, for example, the employee being pregnant and the dismissal being a direct result of this, the assertion of statutory rights (such as the working time directive) and refusal by employees in shops or betting offices to work on Sundays.
Constructive dismissal, if proven, counts as dismissal.