A thorough summary of under what grounds an employee can bring a claim for unfair dismissal against the employer. Including the remedies available to the employee such as being re-instated, re-engagement or alternatively being compensated. A neat summary of the different ACAS codes and why they ar...
Is the claim being brought 3 months BACK A DAY from EDT (s111) (6.3.1).
in the Time Limit? o EDT (s97) =
Termination with notice = date notice expires.
(1)
Is the claimant eligible to Must be an “employee” (s94) ERA 1996.
bring an unfair dismissal
claim? o Employee = “An individual who… works under… a contract of
employment” (ERA 1996, s230(1)).
(2)
o Evidenced by existence of written statement of terms: these must be
given to “employees” (ERA 1996, s1(1)).
Must not be an excluded class (3.6).
o Certain classes of employees cannot claim unfair dismissal e.g. police
service, ‘share’ mariners and members of the armed forces. Diplomatic
and state immunity may also protect certain classes of employees.
o Simply say employee is not in an excluded class.
Must have sufficient period of continuous employment (3.5.1.1).
o 2+ years if employee started work on or after 6th April 2012.
o 1+ year if employee started work BEFORE 6th April 2012.
From: Date employment commenced (check contract).
To: the EDT (effective date of termination) (s108(1)).
EDT (effective date of termination) is defined by S97 ERA 1996:
(a) For employees, whose contract is terminated by notice- whether given by the
employer or employee, the date on which that notice expires.
(b) for an employee, whose contract is terminated without notice, the date on which
termination takes effect.
(c) for an employee with a limited-term contract which expires without renewal, the
date on which the term expires.
Note: In circumstances where the employee is entitled to a statutory minimum period
of notice under s 86 of the ERA 1996 f he is dismissed without notice or with less
notice than the statutory minimum, for certain purposes his EDT will be extended by
the statutory minimum period of notice to which he was entitled but did not receive
(ERA 1996, s 97(2)) – not used just for extending time limit to present claims- only
very specific circumstances.
Must maintain continuity of employment:
Periods of employment must be continuous. If a period of employment is broken so
that it is not continuous with a later period, the employee will commence a new
period of employment after the break, starting again at week one.
o Employees dismissed because of pregnancy (plus certain other
reasons, see 3.5.3) do NOT need to show period of continuous
employment. E.g if the employee is absent due to sickness, injury,
pregnancy or confinement up to a maximum of 26 weeks, or there is
temporary cessation of work.
o It is automatically unfair to dismiss an employee because she is
pregnantthere
o This means that once the tribunal has established that the reason for
the dismissal falls under this head, it will not have to go on to consider
the reasonableness of the decision under s 98(4).
o industrial action does not break continuity of employment, but days
during which the employee is on strike or locked out by the employer
, do not count in computing the length of employment (ERA 1996, s
216).
Has the employee been Actual dismissal?
dismissed? o I.e. Contract is terminated by the employer (s95(1)(a)).
o With or without notice.
s95 – Definition of o Martin v MBS Fastenings (Glynwed) Distribution Ltd [1983]- the employee
Dismissal was forced into resining by employer; hence it was treated as dismissal.
o Sandhu v Jan de Rijk Transport Ltd [2007]- an employee at a meeting was
(3) involved in the employee had had no advance knowledge of what was to be
discussed in the meeting, no time to take advice and no opportunity for
reflection that he was going to resign because of it- because he did not
negotiate freely, it was treated as dismissal.
o Employer must consider Acas Code- failure to follow the Code gives
tribunals a discretionary power to increase or decrease awards by up
to 25% if they consider that the employer’s/employee’s failure to
comply with the Code was unreasonable
A limited term expires without being renewed or is ended early
o the non-renewal of a limited-term contract is treated as a dismissal for the
purpose of pursuing the statutory claims.
(a) An employee is treated as dismissed if ‘he is employed under a limited-term
contract and that contract terminates by virtue of the limiting term without being
renewed under the same contract’ (ERA 1996, ss 95(1)(b) and 136(1)(b)).
(b) A limited-term contract may contain a ‘break’ clause under which one party,
usually the employer, is entitled to terminate by giving notice before the term
expires. If such a contract expires by effluxion of the limited term and the
contract is not renewed, the employee is treated as being dismissed under this
subsection. If the employer terminates the contract by giving notice under the
‘break’ clause, the employee is dismissed under s 95(1)(a) or s 136(1)(a)
Constructive Dismissal?
o Where employee is entitled to terminate without notice “by reason of
the employer’s conduct” (s95(1)(c)).
o Repudiatory breach of contract by the employer.
o Employer refuses to pay: A unilateral reduction in pay will amount to
repudiation of the contract. This would include, for example, reduction in
fringe benefits or refusal to pay overtime at overtime rates.
o Employer pays below national minimum wage: Where an employee is
paid well below the national minimum wage, that may amount to such an
obvious and egregious breach as to amount to a clear repudiatory breach
(see Mruke v Khan [2018]
o Fundamental change in job description: will amount to repudiation if
there is no term allowing the employer to make such a chang.
o If so- employees can treat themselves as constructively dismissed.
There is implied into contracts of employment a term that employers will not
‘without reasonable and proper cause, conduct themselves in a manner
calculated or likely to destroy or seriously damage the relationship of
confidence and trust between the employer and employee’ (Woods v WM Car
Services (Peterborough) Ltd [1983]
Express or implied term.
Last straw doctrine: In some instances, while an act may not of
itself be sufficiently serious, it is possible to look at the cumulative
effect of a number of minor breaches- it is not necessary that the
last act of the employer must have been the catalyst to which
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