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Unfair Dismissal Notes

LPC Law Notes > Employment Law Notes

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A more recent version of these Unfair Dismissal notes – written by University Of Law students – is available here.

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* burden of proof on employee
* 3 months (-1 day) from day of termination (EDT)
* 2 years of service for those employed on/after 6th April 2012; 1 year for others
* not in an excluded classDismissal
* burden of proof on employee
* non-renewal of fixed-term contract after expiry
* actual dismissal
* constructive dismissalReason for Dismissal (ERA 1996, s98 (2))
* burden of proof on employer
* what is the reason
* is it one of the 5 potentially fair reasonsFairness of Dismissal (ERA 1996, s98 (4))
* test - range of reasonable responses
* employer size and resources
* equity
* sufficiency of reason employer has given
* substantial merits
* procedure
* ACAS code of conductRemedies
* reinstatement / reengagement (re-hired either in same position or company)
* compensation
# basic: age factor (1/2/1/11/2) x gross weekly pay (max PS464 from 6 th April 2014) x number of complete years in service (max 20) - (EA 2002, s38)
# compensatory: immediate loss of net earnings, future losses incl. pension, mitigation, other deductions (max PS76,574 from 6 th April 2014)
# basic/compensatory award can be increased or decreased by up to 25% for unreasonable failure to follow ACAS CodeOther Claims
* consider redundancy payment, wrongful dismissal, discrimination
* but employee cannot be compensated twice for the same loss

STATE THE CLAIM BEING MADE - Unfair Dismissal Every employee has the right not to be unfairly dismissed by his employer (s 94 ERA 1996)


The claim must be made within 3 months of the Effective Date of Termination EDT) (s.111)- or within such time as the Tribunal considers reasonably practicable for the complaint to be presented. This may be extended;
? If the applicant has reasonable excuse, OR
? By the statutory minimum period of notice (s.97(2)).
? The time limit is [date] (Gisda Cyf v Barratt) which is three months less a day (Pacitti Jones v O'Brien).
? The time limit can be extended because of early conciliation notification requirement to ACAS and compulsory since May 2014.
? When claimant contacts ACAS, this will immediately pause the time limit for presenting the claim.
? [Claimant] has made an early conciliation application which did not work out
[see statement details]. Simon Boyle has complied for the time limit requirement.

Eligibility test???Be an employee Have been dismissed Have requisite period of employment Not be within an excluded class
[Claimant] has to prove he is eligible. An employee is defined as: 'an individual under...a contract of employment' (s.230(1) ERA 1996) The court held in Ready Mixed Concrete (South East) Ltd v Minister for Pensions and National Insurance (1968) that a contract of service existed where;

1. The employee must be under an obligation to perform the contract personally. o They will use their own work and skill.


2. There must be mutuality of obligations between employer and employee. o An 'irreducible minimum obligation on behalf of the parties' o The employer must be under an obligation to offer the employee work and if offered the employment the employee must be under a duty to accept the work

3. The employee must have agreed to be subject to the control of the employer, such as o Hours of work/place of work/duties to be performedOther provisions may be important in the overall picture and may have a greater or lesser effect on a case-by-case basis, such as;
? Who pays the tax/NI?
? Who provides the tools and equipment?
? How is the individual paid for sickness/holiday? Pensions?
? Is the individual subject to the employer's disciplinary and grievance


? How did the parties view the relationship at the outset?
1 year = 12 calendar months if employed before 6 April 2012 2 years = employed after 6 April 2012 (s 108(1) ERA 1996) EDT is defined at ss 97 & 145 ERA 1996 for an employee whose contract is terminated without notice as the date on which the termination takes effect. Even though there may be a dismissal letter, the contract ceased to have effect on the date employee learned of the dismissal. Because he started employments [before/after] 6 April 2012, he only needs [[1] /
[2] years of continuous service]
Usually working 'continuously' for the same employer (s 210(5) ERA 1996) even if illness, temporary cessation of work, industrial action The one year is measured from the EDT (ss 97 & 145 ERA 1996)
? If by notice then from date notice expires
? If without notice then from date of termination
? If fixed-term/specific task then from expiry of contract

NB if the employee is dismissed without notice but given wages in lieu, the EDT is still the date the employee was told to go. NB2 With a constructive dismissal, the EDT is the date of departure-which is then to be the employee's acceptance of the repudiation/fundamental breach. The EDT can be extended in special circumstances;
? For an employee who has a statutory minimum period of notice under s.86 ERA 1996. If they are dismissed without notice (or reduced notice) then they may extend the EDT by the statutory minimum notice period.
? For an employee claiming constructive dismissal, they may add the statutory notice period to the date the employee gave notice (s.97(4))
? NB this only applies for cases where unfair dismissal is claimed.EXCLUDED CLASSES


Armed forces Police officer Share fishermen (paid a share of the profits of the earnings of the vessel) Employees knowingly working under illegal contracts.
[NAME] is an employee as they have an [employment contract/s.1 statement]
[he/she] has the requisite period of continuous employment as [NAME]
commenced work [YEARS (check his dates for the new rule of 2 years)] ago.
[NAME] is not part of an excluded class.
[NAME]'s employment was terminated on [DATE] therefore [he/she] would have to bring claim within 3 months (less one day) by midnight [DATE]. (s.111 ERA 1996)'

[Claimant] has to prove the dismissal. Under s.95(1) ERA 1996 which covers;ACTUAL DISMISSAL (whether with or without notice (s 95(1)(a) and s 136(1) (a) ERA 1996)) On the facts, [EMPLOYEE] was [DIMISSAL] therefore he has been actually dismissed without notice (s.95(1)).
? General exhortation 'if you don't like the job, you can f**** off' (Futty V Brekkes (D&D) Ltd) was not a dismissal



CONSTRUCTIVE DISMISSAL - repudiatory breach by Employer which Employee accepts and in response to which Employee resigns within a reasonable time (if not, deemed to have 'waived' breach)(Western Excavating) under s 95(1)(c) ERA 1996 Includes 'last straw' doctrine - accumulation of breaches (Abbey National v Robinson)

'On the facts, [EMPLOYER] has...
(check any clauses for guidance on whether it could be argued that the reason is ok)???

Reduction in salary (express term of contract Change in job description (helpline worker now not a trainer, differences in the jobs i.e. no more face-to-face customer contact) Change of contractual hours (does contract permit this) (Temp change not perm) (unsocial hours - 7pm finish) Removal of a bonus Transferring power to another on a permanent basis when employee is away is a breach of the implied term of trust and confidence Not receiving a pay rise when all his colleagues have - breach of the implied duty of trust and confidence

This is a repudiatory (not minor) breach of [express or implied] terms of the contract which will entitle [EMPLOYEE] to resign (without or without notice) and discharge the contract for constructive dismissal (Western Excavating).
[EMPLOYEE] has a good chance despite it being difficult to prove. [EMPLOYEE]
[DID/MUST] resign within a reasonable time of the breach [DATE EXAMPLE].Minor breaches wont justify a resignation unless 'last straw', which is the last of many minor breaches, resignation may be justified as employers conduct is looked at as a whole (Abbey National v Robinson)

NB not resignation/mutual agreement/having their contract frustrated. Where an employee intends to rely on s 95(1)(c) of the ERA 1996 - constructive dismissal -

* Let the employer know the nature of the grievance.

* Hold a meeting with the employee to discuss the grievance. ACAS procedure

* Allow the employee to be accompanied at the meeting.

* Decide on appropriate action.

* Allow the employee to take the grievance further if not resolved.

* Overlapping grievance and disciplinary cases: where an employee raises a grievance during a disciplinary process, the disciplinary process may be suspended temporarily in order to deal with the grievance. Where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently.

REASON FOR DISMISSAL (BURDEN OF PROOF ON EMPLOYER) 'The burden of proof is on [EMPLOYER] to show that the reason for the dismissal was fair...' An employer may be justified in dismissing an employee for the substantive reason, but the dismissal may still be unfair if there are procedural defects. Under s 98(2)[ ], an employer may dismiss an employee for reasons that relate to [state the reason]. The five permitted reasons under s 98(2) ERA 1996 must relate to:




the employee's capability or qualifications to do the work they were employed to do; the employee's conduct; the fact that the employee is redundant; the fact that the employee could not continue to work in their current job without contravening some statutory provision; or, some other substantial reason sufficient to justify the dismissal of an employee holding the position of the dismissed employee.

REASON S.98(2)(a) provides that an employer may fairly dismiss an employee for a reason that relates to...


1. Capability to do the job ('assessed by reference to skill, aptitude, health (alcoholism affecting work) or any other physical or mental quality' (s 98(3)(a))); On the facts, [EMPLOYEE]...


S.98(2)(a) provides that an employer may fairly dismiss an employee for a reason that relates to:

2. Qualification must be shown to be essential for the job requirement On the facts, [EMPLOYEE]...
S.98(2)(a) provides that an employer may fairly dismiss an employee for a reason that relates to:

3. Employee is too ill to do the job On the facts, [EMPLOYEE]...Before dismissing any employee for incompetence, an employer should normally have met with employee, warned the employee about his standard of work and given him the opportunity to improve Evidence of incompetence gained through a fair and thorough investigation?
Consideration of length of employment/employees status/past performance?
The offer of alternative employment within the business Retraining?
Must be connected substantially to the employee's job (e.g. a driving licence (though see illegality)

The employer should consult with the employee concerning the nature and likely length of the illness, seek medical advice relating to the condition of the employee and consider whether suitable alternative employment can be offered
? Has the employer investigated the nature of the illness?
? The likely absence?
? The impact of the absence on the business?
? Is the absence long-term or intermittent?
NB. Disability discrimination - Equality Act 2010 in relation to ill-health dismissalREASON S.98(2)(b) provides that an employer may fairly dismiss an employee for a reason that relates to conduct. On the facts,

THE EMPLOYEE S CONDUCT (S.98(2)(B)?Misconduct within and outside employment Provided that the exterior misconduct has an effect on the employment relationship To rely on misconduct to justify the dismissal the employer must be aware of the misconduct at the time of the dismissal.Includes:

1. Disobedience of orders

2. Breach of duty of fidelity

3. Dishonesty

4. Fighting

5. Sexual harassment

6. Absence without permission

7. Lateness

8. Other breaches of contract (mobility clause)(Boston Deep Sea Fishing) where dismissal was justified from evidence found after dismissalTo minimize his potential liability for unfair dismissal the employer should have a comprehensive set of disciplinary rules.?

PROCEDURAL FAIRNESS Following ACAS Code - page 136-138 Minor matters - informal meeting at first, dismissal if they continue

Serious matters - follow the 3 step guide (1) Caution (2) 1st warning (3) 2nd warning (4) Final warning (5) Suspension
- Gogay also held that to suspend an employee pending investigations was a breach of mutual trust and confidence. Held, must be reasonable cause for suspension (6) Dismissal Suspected misconduct? (BHS v Burchell (1978))
[?] The employer carried out a reasonable and proper investigation into the conduct (Sainsburys Supermarket)
[?] If employer has genuine belief in guilt
[?] The employer had reasonable grounds upon which to base this belief (evidence CCTV etc (Panama) NB Conclusive proof is not necessary

ACAS does NOT apply to redundancy


REASON S.98(2)(c) provides that an employer may fairly dismiss an employee for a reason that relates to the facts that the employee is redundant to the needs of the business [FACTS]'.Dismissal by reason of redundancy may give rise to a claim for a redundancy paymentHowever, redundancy is also a potentially fair reason for dismissing an employeeIf an redundancy situation is not fair, can give rise, to an unfair dismissal claim?

PROCEDURAL FAIRNESS Where a dismissal us for redundancy, the tribunal must be satisfied that it was reasonable to dismiss that employee by reason of redundancy It is NOT enough to show that it was reasonable to dismiss an employee (Williams v Compare Maxam)

The employer will not normally act reasonably unless he (apply recommendations from Polkey v AE Dayton Services Lts [1987]): a) Warns and consults any employees affected & their representatives; b) Devise objectively fair selection criteria c) Apply this fairly to all employees d) The offer of alternative employment Potentially fair selection criteria would

? Performance and ability required for current and future needs
? Length of service
? Attendance records
? Disciplinary records

REASON S.98(2)(d) provides that an employer may fairly dismiss an employee for a reason that relates to illegality'. COULD NOT CONTIUE WITHOUT CONTRAVE NING SOME STATUTOR Y PROVISION (S.98(2) (D)) BURDEN PROVING ILLEGALIT Y ON EMPLOYER?

Where it becomes illegal by statute either for the employee to work in the position held, or for the employer to employ him in it Three categories of case where a contract may be tainted with illegality (Hall v Woolston Leisure Services):

1. Contract is entered into with the intention of committing an illegal act

2. The contract is expressly or impliedly prohibited by statute

3. The contract was lawful when made but has been performed illegally, and the party seeking the assistance of the court knowingly participated in the illegal performance
- Requires both knowledge of the illegal performance and participation

PROCEDURAL FAIRNESSIf it becomes illegal for an employee to continue in his employment because to do so would contravene a statutory provision, dismissal will often be fairHowever, the employer should consider whether it is possible to redeploy the employee to another job

NB It is a criminal offence under s.8 Asylum and Immigration Act to employ a person who does not have permission to work in the UK.


REASON S.98(1)(b) provides that an employer may fairly dismiss an employee for a reason that relates to another substantial reason...

1. The need to re-organise but falling short of redundancy.

2. Inability of people to work together

3. A refusal to accept a change in terms relating to hours, or pay or job content.

4. Replacement by better qualified employee

5. End of genuine temporary employmentPROCEDURAL FAIRNESS Informed discussions with employeeBusiness reorganisation
? consultation with work-force
? Were other employees ok with it?
? Was it recommended by a private consultant for the business to succeed?Personality clash = warnings

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