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Summary Unfair Dismissal (LLB Notes)
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Unfair Dismissal Notes from the employment law elective at City University
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UNFAIR DISMISSALHow should employers handle misconduct or poor performance before sacking, how does law
ensure use fair procedures; formal steps to make it legal; elements of unfair dismissal; how does
tribunal decide if dismissal is fair and what is test; HRs; remedies of unfair dismissal
s.94 ERA 1996: ‘An employee has the right not to be unfairly dismissed by employer’
Common law position
At common law an employer could dismiss any employee whenever he chooses –any can be
dismissed provided gives full notice and complies with the contract, the employee has no remedy
Law on UD
Gives protection against dismissal at a ‘whim’, statutory claim for UD introduced fairness into
termination of contracts of employment – did employer treat that employee fairly
Employer must show had a good reason to dismiss but also acted fairly in the way dismissal was
handled dismissal was fair in all circumstances, and procedure was fair, so if it is a big company
may have like disciplinary procedures, if small should go to ACAS for a process of dismissal and
follow the criteria, then employee might be found to be fairly/unfairly dismissed
DEFINITION
Dismissal is defined in S.95 + 136 ERA 1996 – will arise in 3 situations
oS.95: 3 circumstances in which an employee is dismissed: (1) contract is terminated by employer
(with or without notice); (2) employed under limited-term contract and that contract terminates
in the limiting even without being renewed under the same contract and (3) employee
terminated contract in circumstance can without notice by reason of employer’s conduct
ACAS CODE OF PRACTICE ON DISCIPLINARY AND GRIEVANCE PROCEDURES –entitled to take
someone with you, with there being some issues with the manager, and need to sit in front of
line manager might be uncomfortable, may bring a trade union member or another employee,
difficulties if employee wants to maintain relationship with employer – narrow criteria of people
PROCEDURAL UNFAIRNESS
Employer must justify dismissing an employee for the substantive reason, but dismissal may still
be unfair if employer does not follow a fair procedure in reaching decision to dismiss (tribunal
may see reason is okay, but then if behavior was fair, employers follow ACAS code procedures)
ACAS Code of Practice on Disciplinary & Grievance Procedures–not legally binding, used see if fair
Polkey v Dayton Services: held procedural unfairness will render a dismissal unfair even though
compliance with a fair procedure would result in same decision –procedure needs to be fair
Code focuses on involvement of employees and reps in grievances, discipline + appeal structures
Employee be informed of allegations against them with supporting evidence before meeting
Before decisions are reached – employees should be able to challenge the allegations and should
have a right to appeal so should be allowed to a hearing + appeals
System of warnings important part of a disciplinary system but if warning ignored + misconduct
repeated –employer may wish to impose a lesser sanction in a case not warranting dismissal
ELIGIBLE EMPLOYEE – s.108 ERA 1996
To bring a claim to Tribunal, employee (not a worker) has to have 2yrs continuous employment
Note: exceptions like trade union membership, health and safety concerns, pregnancy
So must be an employee, have an employment contract (contrast with Uber case), there are
exceptions, like trade union membership, safety + pregnancy so do not need to meet 2year rule
1
,Reason for Dismissal
Burden of proof is on employer show reason for dismissal was fair– so good reason + fair
Must be 1 of 5 permitted reasons otherwise unfair (same for constructive dismissal)
5 PERMITTED REASONS – s.98(1) and (2) ERA 1996 determine if dismissal is fair/ unfair
1) s.98(2)(a):relating to the capabilities or qualifications of the employee to do work of the kind
which he was employed to do;
2) s.98(2)(b): relating to the conduct of the employee;
3) s.98(2)(c): that the employee was redundant;
4) s.98(2)(d): that the employee could not continue to work in the position held without
contravening some statutory position; or
5) s.98(1)(b): there was some other substantial reason (SOSR) – reason that could justify the
dismissal of an employee holding the position that he/she held.
First hurdle for employer is to show 1/5 reasons existed for dismissal –then tribunal decides if fair
Then decide whether employer acted reasonably in dismissing employee for that reason
CAPABILITY & QUALIFICATIONS – s.98(3)(a)
Capability defined as ‘assessed by skill, aptitude, health or any other physical/mental quality’
Incapability or qualification to be fair must relate to work employee was employed to do. It also
extends to illness or injury so sickness is a reason for which dismissal of an employee is justified
Approach to capability + qualifications depends on if incapability due to incompetence or sickness
Before dismissal, employer should have met employee, warned of standard of work and given the
opportunity to improve and where appropriate provide the right training
Abernethy v Mott: employee refused to relocate, dismissed for redundancy (in a contract might say
work place is one place or abroad, then not be UD) held employee fairly dismissed for incapability
Sickness
Employee ‘fairly’ be dismissed for long term sicknesswhether employer reasonably expected to
wait any longer for employee get better + did they act reasonably for sick employee before dismiss
Schenker Rail v Doolan: held where there is conflict in medical evidence, employer need only
show acted within range of reasonable responses when preferring the evidence of one expert
over another –medical evidence proved they were sick, employer may ask to see private doctor
Edwards v Hanson School: Edwards on long terms sickness, for depression (work related stress),
if found can return to work obligation is on employer to adjust work to reduce stress and
pressures, Edwards returned + complained not supported him enough, he became more ill and
took early retirement held unfair dismissal, not follow procedure (but compensation was low)
CONDUCT
Conduct can cover misconduct: it can range from bad time-keeping to disobedience of orders,
dishonesty, fighting, sexual harassment or absence without permission (so quit a wide range,
ordinarily if dismissed would be warned, given a written warning, then a final warning, then
would be justified in dismissing you for something small like bad time-keeping)
Distinction between conduct + gross misconduct important (in any contract, will have a list of
what is gross). Gross misconduct will justify a summary dismissal. Dismissal for conduct outside
employment, such as criminal offences could apply but only if they impact on the employment
relationship – e.g. being drunk in office, absence without permission is arguable
It is obvious if gross, but what happens if it is for something outside of work e.g. disqualified from
driving (nature of work, if involves driving) – if get a criminal record it is arguable so tribunal decide
Employer must have knowledge at time of dismissal of misconduct (not use reason after dismissal)
2
, Devis v Atkins: employer discovered the misconduct after dismissed the employee, then cannot
bring the reason that happened after the dismissal
John Lewis v Coyne: held a dismissal for making personal telephone calls, in breach of the company
rules (no use of phone at work), was unfair as employer failed to investigate the seriousness of the
offence, including purpose for the call e.g. if any personal crisis, or if the conduct was persistent –
found unauthorized use of a telephone was dishonest, so dismissed for dishonesty employee
worked for 13yrs, and did not give any opportunity to see why she was on the phone
Criminal offences
Outcome of any criminal proceedings does not need to have any bearing on reasonableness
Gondalia v Tesco: tribunal stated appropriate question when considering the fairness of dismissal
for dishonesty was whether employer acted reasonably in treating the alleged dishonesty as a
sufficient reason for dismissal (so they give opportunity to respond, did they investigate it
properly or was the decision made without allowing to give their view)
REDUNDANCY
Redundancy is potentially a fair reason for dismissal, provided employer handles the situation fairly,
to avoid a claim for unfair dismissal – if fails to handle it correctly can make a claim for UD
Polkey v Deyton Services
HOL case, Polkey a van driver, made redundant without any prior warning handed a redundancy
letter with the payments due to him and sent home, complaint had been unfairly dismissed without
any prior consultation s.57(3) ERA whether the employer had acted reasonably was of sufficient
reason to dismiss an employee and that deciding if the procedure was correct
a) Warns and consults any employee affected;
b) Adopts a fair basis on which to select for redundancy and applies those criteria fairly;
c) Take steps to minimise redundancy by redeployment in its own organization (so should offer
employees if they can work somewhere else in the company – possible for larger firms)
Mental Health Care Ltd v Bilvan: EAT upheld a decision that the use of a recruitment criteria to
select for redundancy, without due regard to past appraisals, or the views of the managers who
worked with employees was unfair (so employers appraise their employees, but it was found this
criteria they adopted was unfair, and thus it was unfair dismissal)
ILLEGALITY (CONTRAVENTION OF A STATUTORY PROVISION)
Contravention of a statutory provision (Illegality). This can arise when it becomes illegal by
statute either for the employee to work in the position held, or for the employer to employ
him/her in it – e.g. in most contracts there is a clause saying are you allowed to work here in the
UK, then check passport, and if not British may ask if you have the right to work here
3 categories where a contract may be tainted by illegality Hall v Woolston Leisure
Hounga v Allen: Miss Hounga came to the UK when on a visitors visa, looked after the respondents
children, when children got older got evicted from the home. Claim unfair for her to be evicted and
dismissed from employment –should not have been in the country, so where there is an illegal act
cannot bring a claim in tribunal claim was allowed to be in the court to prevent people of trafficking,
and thus illegality of her being in the UK did not prevent her bringing a case into the tribunal
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