This document is for students undertaking the employment law module at university on their law degree. The document goes through the essential elements for an employee, and employer, to prove/disprove unfair dismissal therefore perfect for structuring a problem question. It nonetheless includes 202...
UNFAIR DISMISSAL
The main piece of legislation is the Employment Rights Act 1996 hereinafter “ERA 1996”.
For problem questions you need to follow this structure:
1. An employee has the statutory right not to be dismissed under s 94(1); has the employee
been dismissed by his or her employer?
2. Does the employee possess ‘a contract of employment’ under s 230(1) & (2)?
3. Was the employee dismissed, under s 95:
a. By the EMPLOYER, with or without notice (s 95(1)(a)),
b. Contract comes to an end – fixed term contract expiry (s 95(1)(b)),
c. By the EMPLOYEE, with or without notice – constructive dismissal (s 95(1)(c)).
4. Has the employee accumulated ‘two years of continuous service’ under s 108?
5. FAIRNESS:
a. REASON: Did the employer have a fair reason for dismissal under s 98(1) & (2)?
b. PROCEDURE: Did the employer act reasonably under s 98(4)(a) & (b)?
6. What remedies are available to the employee upon a successful unfair dismissal claim?
a. Compensation:
i. STARTING POINT: Basic award pay under ss 119-122 & 126
ii. THEN CONSIDER: Compensatory award under ss 123, 124, 124A & 125
iii. ADDITIONAL AWARD: Provision under s 117.
b. Reinstatement or Re-engagement under ss 112 to 116.
, 1. The Statutory right.
Under s 94(1) of the ERA 1996, ‘an employee has the right not to be unfairly dismissed by
his employer’.
The case, Kuzel v Roche Products Ltd (2008), clarified the position on who bears the burden
of proof in unfair dismissal claims (two important points):
o The ERA 1996 ‘is completely silent on the burden of proof’ for some issues, and when
this occurs, ‘the general rules apply … a person bringing a claim must prove it and a
person asserting a fact must produce some evidence for it’ (at [49] per Mummery LJ)
o (1) DISMISSAL IS ON THE EMPLOYEEE ‘The claimant employee must
prove that he was dismissed’ [50]. They must ‘produce evidence to show that he
was an employee … [such as] a written contract, written particulars or some
other document relating to pay arrangements’ [51].
o (2) REASON FOR DISMISSAL IS ON EMPLOYER (SEE LATER) ‘An
employer who dismisses an employee has a reason for doing so. He knows what it
is. He must prove what it was.’ [61]
2. Individual must be an employee.
Only employees, and thus not workers, can bring a claim for unfair dismissal.
Employee means an individual who has entered into or works under … a contract of
employment s 230(1).
Due to the vagueness in the Statutory definition, consider the common law tests:
CONTROL TEST:
o Does the employer control, or have the right to control, not only what the
employee does but how he does the job? – Yewens v Noakes (1880).
o A contract of service exists according to the authority in Ready Mixed Concrete
(South East) Ltd v Minister of Pensions and National Insurance (1968) if: (a) In
consideration of a wage, employees agrees to provide work, skill and performance
(b) he agrees he will be subject to the employer’s control in a sufficient degree and
(c) other provisions of the contract are consistent with a contract of service.
INTEGRATION TEST:
o How ‘integrated’ is an employee to the business? – Stevenson Jordan & Harrison v
MacDonald and Evans (1952).
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