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LPC Law Notes Employment Law Notes

Unfair Dismissal Model Answer Notes

Updated Unfair Dismissal Model Answer Notes

Employment Law Notes

Employment Law

Approximately 388 pages

A collection of the best LPC Employment notes the director of Oxbridge Notes (a former Oxford law graduate) could find in 2014 after combing through seventeen LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Employment Law notes available in the UK this year. This collection of notes is full...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

STEP 1:

ELIGIBILITY

  • Burden of proof on employee

  • Must be an employee; generally requires:

    • Employee to be under an obligation to perform the contract personally (can’t delegate to someone else)

    • Mutuality of obligations (employer must be under obligation to offer work; employee must be under obligation to accept it)

    • Employee much be subject to control of employer (hours, place of work etc. prescribed by employer)

  • Employee must not be in an excluded class; so not:

    • Armed forces

    • Police officers

    • Share fishermen

  • Employee must have requisite period of employment prior to dismissal by the ‘effective date of termination (EDT); so:

    • EDT =

      • Terminated by notice; EDT = date notice expires

      • Terminated without notice; EDT = date termination actually takes effect

      • Fixed term or specific task contracts EDT = date contract expires

    • 1+ years continuous employment for employees whose employment commenced before April 6 2012

    • 2+ years continuous employment for employees whose employment commenced on or after 6 April 2012

STEP 2:

DISMISSAL

  • Burden of proof on employee

  • Either:

    • Expiry and non-renewal of fixed term contract

    • Completion of a specific task

    • Actual dismissal

    • Constructive dismissal – repudiatory breach by employer which employee accepts and in response to which employee resigns within a reasonable time

STEP 3:

TIME LIMIT

  • 3 months from EDT

STEP 4:

POTENTIALLY FAIR REASON

  • Burden of proof on employer

  • The employer must show that the main reason for the dismissal was one of the five permitted reasons set out in 98(2) ERA 1996:

    • Employee’s capability or qualifications to do the work

      • Employer argues that the employee isn’t capable of doing the job because he lacks capability or he is too ill; the employer must show in the case of the former that such a qualification is essential in order to do the job

    • Employee’s conduct

      • Includes disobedience to orders, dishonesty, breach of the duty of fidelity, poor timekeeping and misconduct outside employment as long as it is connected to the employment (e.g. no implications for cashier convicted of driving offence)

    • Redundancy (consider redundancy payment claim too)

    • Illegality

      • E.g. may be necessary to dismiss a delivery driver if driving offence

    • SOSR (some other substantial reason)

      • E.g. business reorganisations or clash of personalities

STEP 5:

REASONABLENESS

  • Question of fact for tribunal unless automatically unfair (see i-Tut notes)

  • When considering fairness there is essentially two questions to be asked by the tribunal:

    • Should the employee have been dismissed for the reason relied on by the employer?; and

    • Was the procedure adopted by the employer prior to dismissal fair?

      • If the answer to either question is no then the dismissal is unfair

  • In answering these questions we must query whether the employer acted reasonably by identifying the ‘band of reasonable responses’ before ascertaining whether the employer’s actions fell within this band by following the guidance in Iceland Frozen Foods

  • It is important to remember that the question is whether the employer acted reasonably, and not whether the tribunal itself would have dismissed the employee

THE DISMISSAL

  • In line with Iceland Frozen Foods we must determine the employer’s range of reasonable responses (RORR)

  • The starting point is 98(4) – In determining whether the dismissal was unfair the tribunal must consider the following:

  • Size and administrative resources of employer

    • Big employers should have proper policies & procedures/flexibility to accommodate staff – opposite for small employers where ET more sympathetic

    • E.g. “Given that the respondent has 400 employees and 25 stores across the UK, they should have substantial resources and a formal disciplinary procedure”

  • Equity

    • Were others in similar situations treated in the same way?

  • Substantial merits

    • Long serving

  • Other circumstances

    • Fair procedure followed? (see below)

  • Sufficiency of reason

    • Did the punishment fit the crime?

  • Next the tribunal will look for the RORR expected of a reasonable employer as in Sainsbury’s Supermarket

    • Apply – were the investigations reasonable?, was the decision to dismiss reasonable? Etc.

  • Finally the tribunal will determine whether the employer’s actions fall within the RORR

    • Here the question is not ‘would the tribunal have dismissed the claimant’...

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