Step 1: Check eligibility
• Burden of proof is on employee to prove they are eligible.
1. Time limit – must bring a claim within 3 months (less 1 day) from the date of EDT
(effective date of termination). EDT = usually the last day that the employee worked for
the employer.
2. Must be an employee (S94 ERA 1996) – defined as “an individual who works under a
contract of employment” in S230(1) ERA 1996.
3. Must have at least 2 years’ service – this must be ‘continuous employment’, there is a
presumption in favour of the employee that the employment is continuous but can be
rebutted by employer.
4. Must not be within an excluded class – ie: must not be members of the armed forces, the
police service and ‘share’ mariners.
If they are eligible, move on to Step 2
Step 2: Has there been a dismissal?
• Dismissal can arise in 3 ways:
1. Expiry or non-renewal of a limited term contract, or it is ended early;
o 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” – S95(1)(b).
OR
2. Actual dismissal – “the contract under which he is employed is terminated (with or
without notice)” – S95(1)(a).
o If dismissed with no notice = a ‘summary dismissal’.
o If employer’s words are ambiguous = how would the reasonable listener have
interpreted them?
o If employee given a ‘choice’ to either resign or be dismissed – if they choose to
resign = treated as dismissal as they have been ‘forced’.
OR
3. Constructive dismissal – “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” per S95(1)(c).
• Ie: if the employer commits a repudiatory breach = employee can resign and treat
the contract as discharged = has been constructively dismissed.
• Repudiatory breaches of contract may include:
a) Unilateral reduction of pay;
b) Pay below minimum wage;
c) Fundamental change to job description;
, Employment Law Workshop 3
d) Breach an implied term, such as relationship of confidence and trust;
e) Can look at cumulative effect of minor breaches (by employer) – ie: ‘last straw’;
f) A threat to change T&C’s and to dismiss employee if changes not accepted.
• Employee must resign within a reasonable period following the breach – if not =
taken as having affirmed the contract and waived the breach.
If there has been a dismissal, move on to Step 3
Step 3: What is the POTENTIALLY fair reason for dismissal?
• Burden of proof is on employer for this step.
• What is the reason for dismissal? – the onus is on the employer to prove that this reason
falls within one of the 5 ‘potentially fair reasons for dismissal’. If he cannot = the
dismissal is unfair.
• Employer should ensure that he states the correct reason for dismissal on the ET1 to
avoid being at risk of the dismissal being held to be unfair – in any event, tribunal looks
at actual reason, not just what is on the form.
• The five potentially fair reasons for dismissal include:
1. Relating to capability or qualifications of the employee to do work of the kind
which he was employed to do - S98(2)(a);
o Capability looks at skill, aptitude, health or any other physical or mental quality.
o Incapability/lack of qualification must relate to the job which he was employed
to do.
o Also extends to the inability of the employee to do his job by reason of illness or
injury.
2. Relating to conduct of the employee – S98(2)(b);
o Can be conduct of any sort but usually refers to misconduct (of the employee) –
does not need to be gross, ie: multiple alleged breaches could suffice.
o Dismissal for conduct outside of employment = also come within this reason, but
for such a dismissal to be fair the misconduct must usually have an effect on the
employment relationship.
o Misconduct must have been known to the employer at the time of dismissal.
3. Employee was redundant – S98(2)(c);
o Dismissal by reason of redundancy may give rise to a claim for a redundancy
payment as well (see WS4 notes) however;
o Redundancy is also a potentially fair reason for dismissing an employee – if
employer does not handle a redundancy situation fairly, that can give rise to a
UD claim.
o S13 ERA 1996 definition of redundancy applies.
o Redundancy dismissals are not covered by the Acas Disciplinary and Grievance
Code.
4. Employee could not continue to work in the position held without contravening
some statutory provision (ie: illegality)– S98(2)(d);
o Covers the situation where it becomes illegal by statute either for the employee
to work in the position held, or for the employer to employ him in it.
o The burden of proving illegality is on an employer.
5. Some other substantial reason (SOSR) that could justify the dismissal of an
employee holding the position that employee held – S98(1)(b).
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