Employment Law & Practice (LPC) - FULL & Comprehensive DISTINCTION level Notes - full notes bundle produced and used in 2020 in the online delivered classes. These large group and workshop notes have also been used by ULaw and BPP students. The notes include all the content for each class and in hi...
Learning Outcomes:
By the end of this session, you will be able to:
Understand and apply the qualifying criteria to be satisfied before an employee can
present an unfair dismissal claim
Identify the five potentially fair reasons for dismissal under the Employment Rights Act
1996
Identify the elements of the fairness in all the circumstances test
Advise on the procedural steps to adopt in order to avoid an unfair dismissal
Session Activities:
Tutor-led overview on unfair dismissal with questions throughout
Materials Attached:
Session outline
Preparation for Session:
Reading: Article on Practical Law entitled ‘Unfair dismissal: overview’
Read ss.92-95, 97, 98, 108 and 139 Employment Rights Act 1996 (‘ERA 1996’)
Read the attached session outline
Post-Session:
Review what you have learned in the session
UNFAIR DISMISSAL
1. Introduction
-Very common exam Q (and in practice)→ so likely to get Qs on this
Section 94(1) ERA 1996 gives qualifying employees the right not to be unfairly dismissed:
“An employee has the right not to be unfairly dismissed by his employer.”
In order to proceed to the substantive hearing of an unfair dismissal claim at the employment
tribunal, there must have been a dismissal and the individual must be a qualifying employee.
Approach to unfair dismissal:
2. Dismissal
In order to succeed in an unfair dismissal claim, there must have been a statutory dismissal.
Section 95(1) ERA 1996 sets out the three types of statutory dismissal:
“(a) the contract under which he is employed is terminated (whether with or without
notice);
(b) he is employed under a limited-term contract and that contract terminates by virtue of
the limiting event without being renewed under the same contract; or
(c) the employee terminates the contract under which he is employed (with or without
notice) in circumstances in which he is entitled to terminate it without notice by reason
of the employer’s conduct.”
3. Qualifying employee
In exam Q run through this FULLY!! Easy marks
Once a dismissal has been established, the individual must show the following in order to be
eligible to claim for unfair dismissal:
that he/she is an employee; (employees get all rights, and only they have right to not be
unfairly dismissed)→ cannot be self-employed or worker (see wording of the facts in the
scenario if are ‘employed’)
that he/she has the requisite continuous employment; (amount of time working for
one employer of if TUPE working for transferee + transferor)→ NEED 2 YEARS
SERVICE
-Started on or after 6 April 2012 = 2 years
-Started prior to 6 April 2012 = 1 year
-Automatically unfair reasons = 0 (If can prove dismissed for these reasons, then do
not need any period of service to claim for UD)
that he/she is not in an excluded category; and
-Police; and
-Armed Forces
-See facts→ e.g. ‘X works as a admin assistant’→ need to explicitly say in exam ‘X works as
an admin assistant and therefore not in the police nor armed forces’ and therefore not in the
excluded category→ NEED TO SAY IT LIKE THIS…. DO NOT SKIP THIS PART
that he/she brings the claim within three months of the effective date of termination
(the ‘EDT’), subject to the ACAS early conciliation procedure.
-Calculation= forward 3 months, then back 1 day
-all subject to ACAS early conciliation procedure→ need to go through conciliation process
(to settle claim)→ advice in practice need to do this, otherwise EAT will not look at claim→ in
ET1 Form will need to give claim number for ACAS
3.1 Employee
3.2 Requisite continuous employment
Section 108(1) ERA 1996 states that an employee must have at least two years’ continuous
employment ending with the EDT (where the employment started on or after 6 April 2012).
Provided the employee remains with the same employer, it does not matter that the
employee has changed jobs; moved to a different branch or been absent on authorised
leave, for example annual leave or maternity leave; continuity is preserved. Continuity is
also preserved in the event of a transfer of undertakings covered by the Transfer of
Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’).
There are special rules for certain types of breaks, for example strikes and employment
abroad. However, the detail of these rules is beyond the scope of the module.
If the employee has been dismissed for one of the automatically unfair reasons (see
paragraph 5 below), he/she does not need to show any period of continuous service (with
two exceptions, namely a dismissal on the transfer of an undertaking under TUPE where that
dismissal is not for an economic, technical or organisational reason entailing a change in the
workforce; and a dismissal for a spent conviction or failure to disclose one).
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