Unfair Dismissal And Remedies Notes

Unfair Dismissal

Eligibility

• Individual must:

  • Be an employee (not SE or a worker)

  • Have the relevant continuous employment – i.e., when employment began

    • Before 6^th April 2012 – 1 year

    • After 6^th April 2012 – 2 years

  • Commence the claim within 3 calendar months of dismissal

    • 3 months of EDT (“effective date of termination”)

    • Date of dismissal…jump back 1 day and add 3 months

    • Date of dismissal, not date of appeal unless contract provides for continuing service until determination of appeal

  • Not be an excluded category

    • E.g. police, armed forces

• EDT

  • Can be:

    • When notice expires (if given)

    • Date of dismissal if not notice

    • Date of PILON payment

    • Expiry of fixed term contract

  • Possible to extend?

    • At tribunal discretion – unusual

    • Test:

      • Not reasonable and practicable to present within 3 months

      • C to prove

    • Present claim within such further period as the Tribunal considers reasonable in order for an extension

Dismissal

• Express, with or without notice

• Expiry of fixed term contract

• Constructive dismissal, e.g.:

  • Reduction in pay – Industrial Rubber Products v Gillon

  • Complete change in nature of job – Ford v Milhorn Toleman Ltd.

Fairness – limb 1

• 5 acceptable reasons to dismiss

• IF not one of the reasons, dismissal is unfair

  • Capability

    • Qualifications lacking

    • Illness prevents work

    • Incompetence

  • Conduct

    • Need not be gross misconduct

    • Can include conduct outside working hours

  • Redundancy

    • Job or place of work goes

  • Illegality

    • Rare – e.g. driver loses his licence so continuing job is illegal

  • SOSR (some other substantial reasons)

    • E.g. someone taking temp work to cover maternity leave, imprisonment, age of retirement, etc.

  • Automatically unfair reasons

    • Union membership

    • Health and Safety related dismissals

    • Maternity-related dismissals

    • Etc.

• Written reasons – s.92 ERA

  • If 1 year employment, entitled to request reasons within 14 days of dismissal

  • Employer has 14 days to respond

  • Failure to provide = separate claim for failure

    • 2 weeks pay given (no limit)

    • 3 month time limit to claim

Fairness – limb 2

• s.98(4)

  • Consider the conduct of the employer

  • Do not substitute decision

  • Will be a band of reasonable responses, as long as decision was within, it is fair

• In addition to limb 1

  • Did the employer act reasonably?

    • Midland Bank v Madden (2000)

      • Band of reasonable responses

    • Devis and Sons v Atkins (1977)

      • Judge on what the employer knew at the time, rather than what came about in the future

    • BHS v Burchell (1980)

      • The role of investigation

      • If employer:

        • Had honest belief

        • Had reasonable grounds for holding belief

        • Reasonable grounds based on a reasonable investigation

      • Will be fair.

  • Was the decision to dismiss determined with equity and the substantial merits of the case

• ACAS Code of Practice, Disciplinary Procedures

  • Employers should have regard to requirements of natural justice

    • If something is alleged, you should be told about allegation and evidence. Allowed to respond before decision is made.

• Other factors:

  • Seize of employer

  • Length of service

  • Disciplinary record

  • Consistency of treatment

  • Nature of offence

• Polkey reduction

  • Reduction...

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