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Summary UNFAIR DISMISSAL - Employment Law and Practice Elective
DISTINCTION ACHIEVED UNFAIR DISMISSAL - Employment Law and Practice Elective linked to Workshop 3 (ULaw)
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UNFAIR DISMISSALOVERVIEW
Ø Unfair dismissal is a statutory claim for compensation
Ø Concerns the reason for the dismissal being unfair
Ø Typically only accrues after 2 years of employment
Ø Can involve actual or constructive dismissal
Ø Successful claimants can recover a basic and potentially compensatory award
TIME LIMITS
Unfair dismissal claims must be bought within 3 months (less 1 day) of the date of
dismissal (i.e. count back a day from the date of dismissal to make sure the claim is
within time)
Prior to issuing ET proceedings, would have to refer the matter to early conciliation at
ACAS and would have to get a certificate of that reference from ACAS in order to lodge
that claim with the ET
,STEP 1: ELIGIBILITY (BURDEN OF PROOF ON EMPLOYEE)
Must be bought within 3 months (less 1 day) of the date of dismissal
Every eligible employee has the right not to be unfairly dismissed by his employer (ERA 1996,
s 94)
Only available to employees who have been dismissed. Individual MUST be an employee (not
a worker) and have the necessary 2 years’ continuous employment (ERA 1996, s 108)
Employee must NOT be part of an excluded class
STEP 2: DISMISSAL (BURDEN OF PROOF ON EMPLOYEE)
In order to pursue a complaint of unfair dismissal, a person must:
1. be an employee; (ss 94, 135 ERA 1996)
An employee is defined as ‘an individual who ... works under ... a contract of
employment’ (ERA 1996, s 230(1))
Self- employed, workers and independent contractors are EXCLUDED from
entitlement
2. have been dismissed;
s95(1)(a) – (c) ERA 1996, dismissal may arise in 1 of 3 ways:
a) the contract is terminated by the employer (whether with or without
notice) – ACTUAL DISMISSAL; or
An employee is treated as dismissed if ‘the contract under which he is
employed ... is terminated by the employer (whether with or without notice)’
(ERA 1996, ss 95(1)(a) and 136(1)(a))
This is an objective test: Futty v Brekkes (D&D)
b) a limited term expires without being renewed or is ended early; or
The non-renewal of a limited-term contract is treated as a dismissal for the
purpose of pursuing the statutory claims
Limited term expires without being renewed: dismissal – ERA 1996,
s95(1)(b) and 136(1)(b)
Limited term terminated before the term expires: dismissal – s96(1)(a) or
s136(1)(a)
, c) the employee is constructively dismissed – see Western Excavating
Ltd v Sharp
Employee is to be treated as dismissed if ‘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’ (ERA 1996, ss 95(1)(c) and 136(1)(c))
Employer’s conduct must either amount to a significant breach going to the
heart of the contract, OR show that the employer no longer intends to be
bound by one or more of the essential terms of the contract. The employee
is then entitled to treat the contract as discharged at common law (Western
Excavating Ltd v Sharp [1978] QB 761, CA)
Objective test - whether the employer intended to breach the contract or
not is irrelevant
Breach of an express term of the contract by the employer can amount to
constructive dismissal, e.g.
• Reduction of pay
• Pay below the national minimum wage
• Job description
3. have been continuously employed for the requisite period;
2+ years if employee started work on or after 6th April 2012
1+ year if employee started work BEFORE 6th April 2012 (s108(1))
1. From: Date employment commenced (check contract)
2. To: the Effective Date of Termination (EDT)
EDT definition:
• When a contract of employment is terminated by notice, the date on which that
notice expires
• When a contract of employment is terminated without notice, the date on which
the termination takes effect
• When a contract of service is for a fixed term and is not renewed, the date on
which the fixed term ends
NB: s97(2) extends the EDT by the relevant statutory minimum where s86 is
applicable and the employee is given no notice or less notice than they are entitled to
NB: the continuity of employment is NOT required if the employee’s case falls within
the exceptions in s108(13), e.g. that the dismissal related to pregnancy or maternity
4. not be within an excluded class
EXCLUDED CLASS: cannot claim unfair dismissal, e.g.
• Members of the armed forces
• Police service
• ‘share’ mariners
• Crown services
, STEP 3: REASON FOR DISMISSAL (ERA 1996 S98(2)) (BURDEN OF
PROOF ON EMPLOYER)
Automatically unfair:
Certain reasons are automatically unfair e.g. dismissing a pregnant employee solely
because the employer might have to pay maternity leave
Potentially fair:
Burden of proof will then shift to the respondent, who will need to prove a potentially
fair reason for the dismissal
The employer must establish 1 of the 5 potentially fair reasons in order to discharge
their burden of proof.
Kuzel v Roche Products Ltd [2008] IRLR 530: the burden is on the employer to show
the reason for dismissal BUT it is not a heavy burden to discharge (Kuzel v Roche
Products Ltd [2008] IRLR 530)
Identify what the potentially fair reason is
NB: If employer is unable to show that the dismissal was for 1 of the 5 permitted reasons,
the dismissal will be held to be unfair
1. Capability or qualifications (s98(2)(a)))
“Capability”: s98(3)(a) - ‘capability assessed by reference to skill, aptitude,
health or any other physical or mental quality’
The incapability or lack of qualification for which the employee is dismissed
must relate to the work which the employee was employed to do
2. Conduct (s98(2)(b)))
May cover conduct of virtually any sort, but it would usually be misconduct
within the employment
e.g. bad time keeping, disobedience of orders, breach of the duty of fidelity,
dishonesty, fighting, sexual harassment or absence without permission
inc. criminal offences and misconduct outside of work hours so far as the
relationship has an effect on the employment relationship
BHS v Burchell: A belief that the employee has committed misconduct may
be included as a potentially fair reason if it is a reasonably held genuine belief
and the employer had undertaken reasonable investigations which resulted in
the belief
NB: unlike at common law, conduct discovered after dismissal cannot be used
to justify the termination of a contract of service in an unfair dismissal claim (W
Devis & Sons Ltd v Atkins)
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