These notes contain all the key information to answer an Unfair Dismissal question on an undergraduate Employment Law Course. They have been heavily condensed so only the relevant and key information is given. The notes are also structured towards the order in which a problem question would be answ...
The origins, aims and character of unfair dismissal
- Prior to 1971 could only really claim WD under common law.
- In effect, employer could dismiss employee for no reason.
- WD about form, not fairness.
- UD created by Industrial Relations Act 1971.
- Since repealed but since has been inserted into Employment Protection (Consolidation) Act 1978 and in
Employment Rights Act 1996 (as amended).
- Original purpose of rules on UD was to put in statutory form ways in dismissal could be classed as unfair
and merit a remedy, therefore discouraging UDs.
- Number of key aspects to claim of UD which must be fulfilled:
1) Person claiming UD must be an employee.
2) There must have been a dismissal (which is defined in the Act)
3) Person claiming must be eligible (appropriate period of continuous employment, although
exceptions).
4) Must be decided if whether dismissal is one which is defined as an automatically UD.
5) If not, must be decided if dismissal is of a class which is considered potentially fair.
6) If dismissal s for a potentially fair reason then must be established that it was fair in fact
according to reasonable range of responses test.
7) Must be considered whether dismissal was carried out according to fair procedures following the
ACAS Code.
8) Finally the appropriate remedy should be decided – if damages then amount of award will need
to be calculated.
- (If employment status a concern, same test for establishing employee status covered earlier in course).
- If there has been a dismissal the next step is for the employee to establish that he is eligible to claim.
Eligibility
- Basic right to claim UD arises from fundamental right in s.94 Employment Rights Act 1996.
1) “An employee has the right not to be unfairly dismissed by his employer.”
- So first, must be classed as an ‘employee’.
- However some employees excluded, including:
1) Share fishermen (crew of fishing ships who take pay as share of profits).
2) Members of police force (s.200 Employment Rights Act 1996).
3) Agreed exemptions authorised by secretary of state.
4) Where there is an agreement to place the dispute under arbitration instead of under a scheme
prepared by ACAS.
5) Employees engaged in industrial action, providing that all of the workers are dismissed and none
is taken back within three months.
6) Employees working under an illegal contract – the general rule is that courts will not enforce an
illegal contract. The issue is what effect will this have on a claim for UD. In some cases the courts
are prepared to overlook the illegality.
- Hewcastle Catering Ltd v Ahmed and Elkamah 1991: a number of employees cooperated with HMRC in
relation to fraudulent VAT receipts on customers’ bills. Employer prosecuted and employees dismissed.
Had participated in fraud but only employer had benefitted from it. CA felt would be wrong for employer
to use argument of illegality.
- Similar position taken where illegality not causally connected to the claim:
1) Hall v Woolston Hall Leisure Ltd 2001: Dismissal because of pregnancy so C brought claim under
Sex Discrimination Act 1975. Contract tainted with illegality because she knew after she had been
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