Dismissal Flashcards
the reason for dismissal must be valid, if not the employee is eligable to bring a claim for unfair dismissal as long as the claim is brought within 3 months
s94 ERA 1996
conduct is a potentially valid reason and would extend to the making of a derogatory comment to a customer
s98 ERA 1996
conduct as a fair reason - stealing
Sainsburys v Hitt
conduct as a fair reason - “appalling” attendance record
Co-Op v Tipton
it was held that the tribunal will consider whether the employer genuinely believed the employee was guilty, had reasonable grounds for that belief and carried out reasonable investigation into the matter
BHS v Burchell
in addition to there being a fair reason for dismissal, the employer must also only take action that a reasonable employer would make
s98 ERA 1996
the the employees dismissal fell within a band of reasonable responses it is likely fair, if not, it is likely unfair - the tribunal must also not consider what it would have done in the circumstances
HSBC Bank v Madden
the ACAS code of practice should ideally be followed in any disciplinary action as reinforced in this statute
s13 ERA 1996
any award obtained against the company for unfair dismissal may be increased by up to 25% due to failure to follow the code
Polkey v AE Dayton Services Ltd
5 fair reasons for dismissal:
- conduct
- capability/performance
- redundancy
- statutory illegality
- some other substantial reason (SOSR)
s98(2) ERA 1996
the “range of reasonable responses test” will be utilised and any tribunal must be satisfied that the actions taken by the employer fall within the range of those expected from a reasonable employer
Iceland Foods v Jones
Ignorance of key information that may be a mitigating factor does not render the dismissal unfair so long as the information could not have reasonably been obtained through an appropriate disciplinary procedure
Orr v Milton Keynes Council
when conducting the investigation the employer must not have a biased view in seeking only information that confirms their suspicions and must also look for evidence that supports the employees position
Salford Royal NHS Trust v Roldan
failure to show a full investigation would not amount to unreasonable action on the employers part if it can be shown that a reasonable employer would have acted in the same way in those circumstances
Sainsburys v Hitt
an ET may increase or decrease an award made to an employee depending on whether the employer has followed the code
s207a Trade Union and Labour Relations (Consolidation) Act 1992
where a tribunal finds the correct procedure would have made no difference to the outcome, the dismissal will still be considered unfair, however, the award can be reduced to nil if appropriate
Polkey v AE Dayton Services
right to unpaid time off for an emergency involving a dependent
s57a ERA 1996
a right not to be subjected to a detriment for taking unpaid leave for an emergency
s47c ERA 1996
verbal warning seen as a detriment as it was issued despite legal right to take leave
RBS v Harrison
multiple incidents cumulatively could give rise to resignation if the employee can no longer continue in her role, leading to a potential claim for wrongful dismissal
Western Excavating v Sharp
if successful in a claim for wrongful dismissal, the employee would be entitled to compensation that would reflect the test for damages for a breach of contract and would put them in the position they would have been in but for the breach of contract
Hadley v Baxendale
there would be no recovery for injury to feelings or psychiatric injury associated with the dismissal
Johnson v Unisys
the employee has a duty to mitigate their losses by taking active but reasonable steps to seek alternative employment
Yelton v Eastwoods Froy
requirements for a claim for constructive dismissal
s98 ERA 1996
