5. UD

Question 1

Redfern v UK

Answer 1

If dismissed for reasons that may violate convention rights (here FOA) then there MUST be a way to challenge this

UK made a narrow exception in s.108

Question 2

Cornwall v Practor

Answer 2

for casual work, court might find MOO even in periods of non-employment

• summers no employment
• enough MOO

Question 3

Glenda v Barratt

Answer 3

EDT = no earlier than date E knows (or at least has reasonable chance to find out that he/she has been dismissed)

Question 4

Geys v Society General

Answer 4

elective theory suggestions termination ‘takes effect’ when E accepts termination (so E can delay EDT)

but CASE LAW favours automatic theory

Question 5

Chesham Shipping v Rowe

Answer 5

ET must ensure it is actually a dismissal and not some words “uttered for particular reasons which everyone understood were little more than abuse”

Question 6

Notcutt v Universal

Answer 6

E could never work again (heart attack)

CA: this is FRUSTRATION of contract
- no need for r to give notice of dismissal or pay sick wages

Question 7

FC Shepard v Jerrom

Answer 7

E imprisoned = frustration of contract

Question 8

Turner v London Transport Executive

Answer 8

constructive dismissal - was E entitled to resign?

ORIGINAL APPROACH: REASONABLENESS TEST
Is R so unreasonable in conduct, E cannot fairly be expected to put up with it any longer?

Question 9

Western Excavating v Sharp

Answer 9

constructive dismissal - was E entitled to resign?

E only entitled to resign if R’s conduct = FUNDAMENTAL BREACH OF CONTRACT

• Denning argued this was more predictable and closer to statute

in this case = no breach of contract so no CD (R just failed to assist E suffering from financial hardship due to suspension without pay for 5 days)

Question 10

Woods v WM Car Services

Answer 10

new owners gave E new T&C

• NO CD
• R did not commit fundamental breach of contract (just suggested new T&C, had not unilaterally changed)

Question 11

Abernathy v Mott

Answer 11

principle reason for dismissal
must be:
ONE - facts known by R at the time
TWO - believes held by R at the time

R cannot reformulate reason

Question 12

Delebole v Berriman

Answer 12

for constructive dismissal, courts usually require R to show reasons for his conduct entitling E to terminate

Question 13

W Devis & Sons v Atkins

Answer 13

R cannot justify dismissal by reference to dishonest conduct discovered AFTER dismissal

• but that conduct can reduce damages (contributory fault)
• here no comp awarded because E did not suffer from dismissal

Question 14

Smith v Glasgow CC

Answer 14

R must give ONE principal reason for dismissal (not lots of reasons)

R gave 3 here –> HL held UD because R did not identify one principal reason

Reason chosen must not be obscure/indeterminate

Question 15

automatically unfair reasons

Answer 15

discrimination

family rights

H&S rep

refusal to work in betting shop on sunday

WTR/NMWA

whistleblower

member of TU

request for flexiwork

Question 16

Iceland Frozen Foods v Jones

Answer 16

whether the employer acted fairly =

within RANGE OF REASONABLE RESPONSES OF A REASONABLE EMPLOYER?

Question 17

Confirmation of RORR

Answer 17

Gilham v Kent
Post Office v Folley
HSBC v Haddon
Morgan v Electrolux

Question 18

British Leyland v Scott

Answer 18

18 years service
R’s car disc found in E’s personal vehicle

NOT UD

• within range of reasonable responses of reasonable employers
• MUST respect managerial discretion
• not correct of ET to say it was not proportionate (too severe a penalty for a minor offence considering years of service)

Question 19

Matthewson v RB Wilson Dental Lab

Answer 19

5.5 yrs service
possession of cannabis

NOT UD
- “harsh but fair”

Question 20

Hadjionnou v Castle

Answer 20

ET likely to find dismissal for breach of rulebook = reasonable

Question 21

Post Office v Folley

Answer 21

E accused of misappropriation of credit cars
R dismissed (reasonable belief E was guilty) 

NOT UD
- within range of reasonable responses

Question 22

Bowater v NW London Hospitals Trust

Answer 22

nurse helped restrain man having a fit
made joke “been a few months” about position she was in

UD

• NOT IN BORR
• R cannot be final arbitrator of its own conduct

Question 23

Turner v EMT

Answer 23

Elias J - domestic test of fairness complies with ECHR

BORR = “heightened standard” when convention rights engaged

Question 24

Pay v UK

Answer 24

ECtHR:

• art.8 engaged
• not violated (MS have wide margin)

Question 25

X v Y

Answer 25

employee working with young offenders
- arrested for having sex in public toilet

NOT ART.8 –> not private (in public)

Question 26

Barbelescu v Romania

Answer 26

engineer had email for customer enquires

• R checked correspondence and found E used it for personal reasons
• E dismissed

art.8 engaged
NOT violated (dismissal lawful, it was proportionate)

Question 27

Polkey v AE Dayton

Answer 27

if procedure unfair but substantially fair = UD but damages reduced

if procedure unfair but would futile = can still be fair

Question 28

Port of London v Payne

Answer 28

Re-employment?

R argued no vacancies (too disruptive to ask remaining workforce to take redundancy)

• test is practicality not possibility
• give weight to commercial judgement
• R can claim for additional award instead

Question 29

Norton v Tewson

Answer 29

COMPENSATORY AWARD

• must be calculated according to identifiable terms of economic loss NOT general award
• objective: compensate E fully but not award any bonus or punitive damages

Question 30

Wardle v Credit

Answer 30

if E’s rep is harmed, and future employment will be badly compensated, award reflects future loss

Question 31

Nelson v BBC

Answer 31

E refused new job offered

- compensation reduced by 60%

Question 32

Thornett v Scope

Answer 32

if E would have been dismissed shortly thereafter for other reasons anyway
= unfair dismissal
= but can reduce damages

Question 33

Dunnachie v Kingston CC

Answer 33

15yrs service
bully/harassed by manager
constructive dismissal (Breach of MT&C)

NO COMPENSATION FOR INJURY TO FEELINGS
- not parliament’s intention