Chris Brunt is a Gibraltar employment lawyer, a Barrister and an Acting Solicitor who will consider all unfair dismissal cases on a “no win no fee” basis”.
Unfair Dismissal in Gibraltar – Introduction
Gibraltar Law – Without a doubt losing your job can be extremely stressful. Even more so in the current prevailing conditions in an uncertain job market. What can you do if you have been dismissed and feel the dismissal is unfair? This is Part 1 of a series of blog posts that explain what exactly the law says is ‘fair’ and what is ‘unfair dismissal’ and will follow the process of a claim brought in the Gibraltar Employment Tribunal for Unfair Dismissal. Later posts will discuss redundancy, discrimination, and bullying claims.
Gibraltar law, as you would expect, protects employees. In fact, Section 59 of Gibraltar’s Employment Act states that an employee (subject to certain qualifications) has the right not to be unfairly dismissed. The most important qualification is that the employee must have been employed for not less than a year, and the employee must actually be an employee! That is, the person employed is working under a contract of service as opposed to the categorising of a worker, or as a self-employed contractor.
Unfair Dismissal
The Gibraltar Employment Act states that a dismissal will be fair only if the employer can first show that the reason for terminating the employment was for one of the following five reasons. That is the dismissal was due to either:
(1) Redundancy
(2) Misconduct
(3) Capability
(4) Some other substantial reason (SOSR)
And, which occurs in practice much more rarely (5), The employer was restricted from continuing to employ the employee due to some enactment of legislation. For instance, an employed taxi driver receives a driving ban.
Notice here that the burden of proof is on the employer to first establish that the reason for dismissal was for one of the five potentially fair reasons above
Section 65. (1) of the Employment Act states:
“In determining for the purposes of sections 59 and 70 whether the dismissal of an employee was fair or unfair, it shall be for the employer to show-
(a) What was the reason (or if there was more than one, the principal reason) for the dismissal; and
(b) that it was a reason falling within the next following subsection, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held
(2) In subsection (1)(b) the reference to a reason falling within this subsection is a reference to a reason which-
(a) related to the capability or qualifications of the employee for
performing work of the kind which he was employed by the
employer to do;
(b) related to the conduct of the employee;
(c) was that the employee was redundant;
(d) was that the employee could not continue to work in the position
which he held without contravention (either on his part or on
that of his employer) of a duty or restriction imposed by or under
any enactment.“
Then subsection 6 of Section 65 of the Employment Act adds
(6) “Subject to subsections (4) and (5) the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances he acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and that question shall be determined in accordance with equity and the substantial merits of the case.“
Subsections 4 and 5 deal with the treatment of employees who are involved with trade union membership, and certain maternity-related situations (which will be dealt with in a later post)
This means an Employment Tribunal will first decide whether the employer had shown that the reason for dismissal fell within subsection 65(1) of the Employment Act, which lists the potentially fair reasons for dismissal then it will go on to consider subsection 65(6) as to whether the employer acted reasonably in doing so
An Employment Tribunal on hearing a claim for unfair dismissal will not substitute its own view on the facts heard in any disciplinary hearing that led to a dismissal. Instead, it will apply the Burchell test to see whether the dismissal was fair, discussed in a later post here and also the decision reached in Iceland Frozen Foods v Jones on the ‘range of reasonable responses’ here.
Procedural Fairness
Most, but not all dismissals take place, or at least they should do, after following due process. If the employer does not deploy a fair process when dismissing an employee including an inadequate appeal process; then the employee could argue that any dismissal was procedurally unfair. But note the Employment Tribunal can still find, depending on the particular facts, that even if a fair procedure was not followed, the outcome would have been substantially the same had the employer done so and will reduce any financial compensatory award for unfair dismissal to reflect this finding, this is called a Polkey reduction after the case Polkey v AE Dayton Services Ltd [1988] ICR 142. However, a Polkey reduction will not reduce the Basic Award.
Contributory Fault
The Tribunal has the power in certain circumstances to reduce any award if it decides that while the dismissal was unfair, the employee’s actions/inactions contributed to the dismissal to the extent that it is just and equitable to make a percentage reduction of the award based on an assessment of the contribution of fault
So while the ‘Polkey reduction’ only applies to the Compensatory Award for procedural fairness it should be noted that by Regulation 2(5) of the Employment Tribunal (Calculation of Compensation) Regulations 2016, (The Regulation) a tribunal can reduce the Basic Award if it thinks it would be just and equitable to do so.
Also, by Regulation 3(6) the Gibraltar Employment Tribunal also has the power to reduce the Compensation Award if, while a finding of unfair dismissal is made against the employer, it considers that the employee’s conduct (or misconduct) contributed to the dismissal.”
Regulation 3.(6) “Where the Employment Tribunal finds that the dismissal was to any
extent caused or contributed to by any action of the complainant, it shall
reduce the amount of the compensatory award by such proportion as it
considers just and equitable having regard to that finding“
Look out for my next blog post, “Unfair Dismissal in Gibraltar-Misconduct” in which I will discuss what can make a dismissal substantially unfair when misconduct is alleged, and what the employer has to prove to defend a claim of unfair dismissal from an employee successfully.
Chris Brunt is an Employment Law Barrister and Acting Solicitor of the Supreme Court of Gibraltar.
Have you been suspended at work, are undergoing an investigation, or received an invitation to a disciplinary hearing? If you have been dismissed you have to act quickly as your right to bring a claim is time-limited! Please contact me for a free 30-minute consultation at Phillips Barristers & Solicitors, 292 Main Street, Gibraltar, GX11 1AA, I would be happy to evaluate your prospects for a claim for unfair dismissal. Telephone me at (+350) 200 73900, or email me at chris.brunt@phillips.gi
if you are an employee to evaluate your prospects for a claim for unfair dismissal.
All employee cases are considered on a “no win no fee” basis.
Disclaimer
All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy and or for any consequences of relying on it. The information and commentary do not, and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site https://www.employmentlawgibraltar.com/
