EMPLOYMENT LAW & PRACTICE
UNFAIR DISMISSAL
Outcomes
By the end of this unit, you should be able to:
1. Analyse a potential unfair dismissal claim; and
Identify fair and unfair aspects of a dismissal situation; and
Evaluate the significance of each; and
Advise on the merits of the claim.
2. Advise a client on the remedies available following a finding of unfair dismissal; and
Calculate any compensation which may be payable to a successful claimant.
3. Identify the drafting skills required to complete section 8 of the ET1 form; and
Plan the contents of section 6 of the ET3 form.
Unit Workshop Tasks
In this unit workshop, you will
1. Review the Preparatory Task to evaluate a potential unfair dismissal claim.
2. Plan the ET3 response on behalf of the Respondent
Contents
Unfair Dismissal 2
Burden of Proof 6
Remedies 11
Compensation 12
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Unfair Dismissal
Ch 5, p157
→ In the UK, every eligible employee has the right not to be unfairly dismissed by his
employer, s94.
→ The statutory claim of unfair dismissal introduced the concept of fairness into termination of
contracts of employment.
→ The employer must be able to show not only that he had a good reason to dismiss, but also
that he acted fairly in the way he handled the dismissal.
Is the claim ❖ 3 months BACK A DAY from EDT (s111) (6.3.1, p209).
being brought o EDT (s97) =
in the Time ▪ Termination with notice = date notice expires.
Limit? ▪ Termination without notice = date of the dismissal.
• Even if there is PILON.
(1) • Where notice is communicated by letter, the date the
dismissal takes effect is the date the employee
actually read the letter and not when it was
written, posted, or delivered (Gisda Cyf v Barratt
[2010] IRLR 1073).
▪ Failure to renew fixed contract = Date the fixed term
expires.
▪ Constructive dismissal =
• Date employee departs OR
• Date employee’s notice expires (if the employee
gives notice).
Is the claimant 3.2. p115
eligible to bring ❖ Must be an “employee” (s94)
an unfair o Employee = “An individual who… works under… a contract of
dismissal claim? employment” (ERA 1996, s230(1)).
o Evidenced by existence of written statement of terms: these must
(2) be given to “employees” (ERA 1996, s1(1)).
o CANNOT be a “worker”
o Other items to support being an employee:
▪ Worked regularly for [X] years no issue that they expected to
work and to be paid for the work;
▪ Clearly took instructions from [X] at the employer;
▪ Materials used for work all provided by the employer;
▪ Had PAYE and NI deducted from wages;
▪ Paid when taking holidays; and
▪ Copy of wage slips to support the above.
❖ Must not be an excluded class (3.6, p128)
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o Certain classes of employees cannot claim unfair dismissal e.g.,
members of the armed forces, police service, ‘share’ mariners.
NB:// Simply say the role of the employee, and that the employee is not
in an excluded class.
❖ Must have sufficient period of continuous employment (3.5.1.1, p124)
o 2+ years, s108 → if employee started work on or after 6th April
2012.
o 1+ year → if employee started work BEFORE 6th April 2012.
▪ From: Date employment commenced (check contract).
▪ To: the EDT (s108(1)).
o Employees dismissed because of pregnancy do NOT need to show
period of continuous employment.
o It is automatically unfair to dismiss an employee because she is
pregnant
o This means that once the tribunal has established that the reason
for the dismissal falls under this head, it will not have to go on to
consider the reasonableness of the decision under s98(4).
o 5.2.3 - Entitled to request that he be provided by his employer,
within 14 days of the request, with a written statement of the
reason for his dismissal, s92. Statement is admissible in evidence in
proceedings.
▪ Pregnancy – if a woman is dismissed while pregnant or
during maternity leave, she is entitled without prior request,
to a written statement.
NB:// always mention that the employees employed for less than the 2
years will not be eligible to claim for unfair dismissal.
NB:// pay attention to employees with just under 2 years continuous
employment i.e., one week short of 2 years’ service – as the notice period
(1 week) will extend the EDT by one week.
Has the ❖ Actual dismissal?
employee been o I.e., Contract is terminated by the employer (s95(1)(a)).
dismissed? o With or without notice.
NB:// always mentioned whether there has or has not been an actual
s95 – Definition dismissal
of Dismissal ❖ Constructive Dismissal?
o Where employee is entitled to terminate without notice “by reason
(3) of the employer’s conduct” (s95(1)(c)).
o Repudiatory breach of contract by the employer.
▪ Express or implied term.
▪ Last straw doctrine.
o Must be a cause of the employee leaving, not the principal or main
cause (Wright v North Ayrshire Council [2014] ICR 77).
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