Essay
Employment Law Coursework
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Essay of 7 pages for the course employment law at DMU (employment law)
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P2432112Are Felicity and Vladimir likely to succeed with unfair dismissal claims? How should Excel
proceed with their redundancy plans? Could Rishi have any claims in relation to his
dismissal? You must support your opinions with reference to any relevant statutory
provisions and case law.
Learning Outcomes
A student should achieve the following learning outcomes on successful completion of this
coursework:
2. Demonstrate a critical awareness of the contextual aspects of Employment Law.
3 Demonstrate a capacity for analytical and deductive reasoning, particularly through
the mechanism of legal problem solving.
4 Demonstrate an ability to present competent and coherent written arguments.
5. Demonstrate an ability to handle primary source material, both case law and
legislation.
Word Count: 2497
Felicity
Section 94(1) of the Employment Rights Act (ERA)1 provides that an employee has the right
not to be unfairly dismissed. Felicity needs to show she is (a) an eligible employee and (b)
was unfairly dismissed. Accordingly, once satisfied, Felicity can file a claim for unfair
dismissal. Yewen v Noakes2 clarifies the meaning of an employee. Felicity is a head teacher
at a satellite school, owned by Excel, thus consolidating the fact that she is an employee and
“an integral part of the business”3. Felicity’s dismissal is covered by section 95(1)(a) ERA as
her contracted was terminated by Excel. Moreover, an employee must have been
continuously employed for no less than two years4. It can be assumed that Felicity had
worked with Excel for more than two years due to her staying on in America after the
necessary year. After succeeding this, Felicity has three months from the date of dismissal5 to
bring forward the claim of unfair dismissal.
Working Abroad
Felicity works in America. The key issue is whether British nationals employed by a UK
company but working abroad can claim unfair dismissal. The ERA does not discuss territorial
limits. Lawson v Secro6 stated that employees cannot claim unfair dismissal if they work
outside of Britain. Hoffman said that ‘territorial scope was not straightforward’7. The courts
1
Employment Rights Act 1996, s94(1)
2
Yewen v Noakes [1880] 6 QBD 530
3
Stevenson Jordan and Harrison v McDonald & Evans [1952] 1 TLR 101 Lord Denning
4
Employment Rights Act 1996, s108
5
Employment Right Act 1996, s111
6
Lawson v Serco [2006] IRLR 289
7
Lawson v Serco [2006] IRLR 289, Lord Hoffman
, P2432112
set out several exceptions under the general rule. Felicity falls under the exception of an
expatriate employee as she was recruited in England and subsequently moved aboard to
continuing working for Excel. However, the House of Lords stated that these individuals are
not covered unless they have a strong connection with Britain. In Duncombe v Secretary8, the
supreme court emphasised that the employee must show that they have a strong connection
with Britain as it was the degree of protection that was vital. Additionally, where the
employee works abroad, there needs to be a sufficient connection with Britain to overcome
the territorial links to the place of work according to the case of The British Council v
Jeffery9. Both cases highlight the nature of the employer, whether it’s a state employer or a
governmental organisation which would increase the likelihood to claim an unfair dismissal
in the UK. Felicity works in a private school, indicating that Excel is a private organisation
thus she does not necessarily have a strong link with Britain as she doesn’t even work for the
government. It is not enough that she is not employed by a British company, there is no close
relation. Hottack10 highlights that not having a strong enough link with Britain will not allow
an individual to make a claim. Considering that, it is unlikely that Felicity would be able to
bring a claim forward.
However, if Felicity was to bring a claim for unfair dismissal, it is now to determine if the
employer had a fair reason to dismiss Felicity. The burden is always on the employer but to
prove he had a fair reason for dismissal is set out in Section 98 of ERA11. Felicity was
dismissed as it was rumoured that she was taking bribes from parents thus satisfying that she
was dismissed due to her conduct under s98(2)(b).12 Therefore, Excel had a fair reason to
dismiss. The employer must also show that he acted reasonably in dismissing his employee
according to s98(4) ERA13. “There is a band of reasonable responses to the employee’s
conduct within which one employer might reasonably take one view”14 This is important as it
highlights the significance of reasonableness in section 98(4)15. In a misconduct case the
employer must show that he had “a genuine belief, based on reasonable grounds and
following a reasonable investigation”16. British Home Stores v Burchell17 is a key case that
highlights that an employer must show that the dismissal was fair.
Accordingly, Polkey v AE Dayton18 emphasised that a fair procedure must be followed which
constitutes of the rules, the procedures, and the sanctions. Firstly, it is vital that Excel
communicated to Felicity that taking bribes is an act of misconduct. A lack of communication
8
Duncombe v Secretary of State for Children, Schools & Families (No 2) [2011] IKLR 840
9
The British Council v Jeffery [2019] IRLR 123
10
R (on the application of Hottack) v Secretary of State for Foreign & Commonwealth
Affairs [2016] ICR 975
11
Employment Right Act 1996, s98
12
Employment Right Act 1996, s98(2)(b)
13
Employment Right Act 1996, s98(4)
14
Iceland Frozen Foods v Jones [1983] ICR 17
15
Employment Right Act 1996, s98(4)
16
British Home Stores v Burchell [1978] IRLR 379
17
British Home Stores v Burchell [1978] IRLR 379
18
Polkey v AE Dayton Services Ltd [1987] UKHL 8, [1988] ICR 142
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