Kiera Lee, writes:

1. Introduction

Employees have the right under the Employment Rights (Northern Ireland) Order 1996 (as amended) not to be unfairly dismissed. It is unfair and unlawful to dismiss someone on the grounds of age, sex, sexual orientation, race, disability or religious or political belief. Interestingly, there has been no reduction in the number of claims for discrimination and discrimination related dismissals in the last 5 years in Northern Ireland so one wonders whether employers in Northern Ireland are getting the message.


2. Automatically Unfair

There are some reasons for dismissal that will be deemed automatically unfair regardless of the length of the employee’s service. Some of the automatically unfair reasons for dismissal are also potentially discriminatory, for example dismissal for reasons relating to: pregnancy and childbirth, requests for flexible working and retirement (without consideration of an employee’s request not to retire). Dismissal for these reasons may also result in a claim for discrimination on grounds of age or sex.


3. Fair Dismissal

For a dismissal to be fair the reason must be potentially fair and the procedures adopted must also be fair. The potentially fair reasons are set out in the Employment Rights (Northern Ireland) Order 1996. In Northern Ireland ensuring a fair dismissal procedure means an employer must comply with statutory dismissal procedures set out in Employment (Northern Ireland) Order 2003. This includes meeting the employee to discuss the reasons for the potential dismissal and allowing an employee the right to be accompanied at that meeting.

Employers must ensure procedures are not discriminatory even if the reason for dismissal is potentially fair. In the case of Scott Adair v FD Exchange Limited trading as CEX (August 2010) the tribunal held that it amounted to discrimination under the Disability Discrimination Act 1995 not to make reasonable adjustments to allow an employee to be accompanied by a person who falls outside the usual rules of accompaniment by restricted persons (Employment Relations (Northern Ireland) Order 1999).


4. Compensation

Employers may be subject to awards for injury to feelings as well as for unfair dismissal if the reason for or the manner of the dismissal amounts to discrimination. These sums are not restricted to the statutory maximum. The maximum award in 2008 / 2009 for a case involving discrimination was £1,353, 442.
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It is more important than ever to get things right. Accurate figures on the ethnic make-up of Northern Ireland will not be available until the next census in 2011. However, there is no doubt that the percentage of the population belonging to ethnic groups has increased.

Employers need to be ever more vigilant of their obligations to ethnic minorities and other vulnerable groups. As unemployment figures rise and job prospects weaken, it is more likely that dismissed employees (fairly or otherwise) will fail to gain alternative employment and will turn to the Tribunals for remedy.

It is often said that variety or diversity is the spice of life. The challenge to employers, if they are to avoid claims, is to promote diversity in the workplace and to consider in depth its meaning before undertaking any dismissal procedure.