5. UD Flashcards
Redfern v UK
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
Cornwall v Practor
for casual work, court might find MOO even in periods of non-employment
- summers no employment
- enough MOO
Glenda v Barratt
EDT = no earlier than date E knows (or at least has reasonable chance to find out that he/she has been dismissed)
Geys v Society General
elective theory suggestions termination ‘takes effect’ when E accepts termination (so E can delay EDT)
but CASE LAW favours automatic theory
Chesham Shipping v Rowe
ET must ensure it is actually a dismissal and not some words “uttered for particular reasons which everyone understood were little more than abuse”
Notcutt v Universal
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
FC Shepard v Jerrom
E imprisoned = frustration of contract
Turner v London Transport Executive
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?
Western Excavating v Sharp
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)
Woods v WM Car Services
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)
Abernathy v Mott
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
Delebole v Berriman
for constructive dismissal, courts usually require R to show reasons for his conduct entitling E to terminate
W Devis & Sons v Atkins
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
Smith v Glasgow CC
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
automatically unfair reasons
discrimination
family rights
H&S rep
refusal to work in betting shop on sunday
WTR/NMWA
whistleblower
member of TU
request for flexiwork
Iceland Frozen Foods v Jones
whether the employer acted fairly =
within RANGE OF REASONABLE RESPONSES OF A REASONABLE EMPLOYER?
Confirmation of RORR
Gilham v Kent
Post Office v Folley
HSBC v Haddon
Morgan v Electrolux
British Leyland v Scott
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)
Matthewson v RB Wilson Dental Lab
5.5 yrs service
possession of cannabis
NOT UD
- “harsh but fair”
Hadjionnou v Castle
ET likely to find dismissal for breach of rulebook = reasonable
Post Office v Folley
E accused of misappropriation of credit cars R dismissed (reasonable belief E was guilty)
NOT UD
- within range of reasonable responses
Bowater v NW London Hospitals Trust
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
Turner v EMT
Elias J - domestic test of fairness complies with ECHR
BORR = “heightened standard” when convention rights engaged
Pay v UK
ECtHR:
- art.8 engaged
- not violated (MS have wide margin)
X v Y
employee working with young offenders
- arrested for having sex in public toilet
NOT ART.8 –> not private (in public)
Barbelescu v Romania
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)
Polkey v AE Dayton
if procedure unfair but substantially fair = UD but damages reduced
if procedure unfair but would futile = can still be fair
Port of London v Payne
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
Norton v Tewson
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
Wardle v Credit
if E’s rep is harmed, and future employment will be badly compensated, award reflects future loss
Nelson v BBC
E refused new job offered
- compensation reduced by 60%
Thornett v Scope
if E would have been dismissed shortly thereafter for other reasons anyway
= unfair dismissal
= but can reduce damages
Dunnachie v Kingston CC
15yrs service
bully/harassed by manager
constructive dismissal (Breach of MT&C)
NO COMPENSATION FOR INJURY TO FEELINGS
- not parliament’s intention
