Dismissals

Question 1

What are the types of dismissal an employee can claim?

Answer 1

Wrongful
Unfair
Constructive

Question 2

What do you do in the exam?

Answer 2

Go through unfair and wrongful dismissal and advise the best route

Question 3

What are the elements of wrongful dismissal?

Answer 3

1) employee has been dismissed
2) the employer is somehow in breach on contract e.g. breach of a notice term
3) the court must decide if the employer has breached this term
4) damages is available if there is a breach and the employee has suffered loss as a consequence

• fairness is not an issue
• no continuity of service required (this is because it is a contractual right)

Question 4

When is dismissal without notice committed?

Answer 4

If the employee has committed a repudiatory breach

If there is a PILON clause

Question 5

what is a PILON clause?

Answer 5

A payment in lieu without notice clause, this avoids a wrongful dismissal claim. The contract is terminated immediately but they employee is pad for the notice period they should have had

Question 6

What happens in the employee commits a repudiatory breach?

Answer 6

the employer can accept the breach and dismiss the employee or affirm the contract (i.e. carry on)

Question 7

Elements for unfair dismissal…

Answer 7

1) Employee must have been dismissed under s96 and s136(1)
2) They must not be excluded from their right to claim
3) There must not be a ‘fair reason’
4) Dismissal must have been unreasonable
5) Dismissal procedure must have been carried out improperly
6) must not fall within the category of being automatically unfair
7) remedies (didn’t do on course)

Question 8

if you have a large salary what route will you take and why

Answer 8

people with 80k+ salary will go through wrongful dismissal because unfair dismissal is capped at around 80k

Question 9

Differences between wrongful and unfair dismissal….

Answer 9

1) fairness not looked at in WD
2) in WD they can take in facts discovered after the dismissal to support the employers defence

3) no requirement for CE in WD

Question 10

Case relating to WD and finding information after the dismissal…

Answer 10

Williams v Leeds United FC - during the notice period it was found C had been using the work email inappropriately. This was a sufficient breach of implied term of trust and confidence so he was dismissed without notice.

Question 11

Who can file for a UDC?

Answer 11

Employees only - s94(1)

They must have 2 years CE at the time of EDT - S108

Question 12

When will someone lose their right to claim?

Answer 12

if the employment contract is illegal (i.e. where the employer and employee collude to avoid tax)
If a settlement has already been reached
If the claim if out of time s111 (within 3 months of EDT)
Police and armed forces cannot

Question 13

Summary of the relevant statutory provisions

Answer 13

S94 - an employee has the right to not be unfairly dismissed
s95 - statutory definition of dismissal
s97 - EDT
s98 - fairness of dismissal

Question 14

summary of s95

Answer 14

1) employer dismissal employee
2) fixed term contract is not renewed
3) constructive dismissal

Question 15

summary of s98(1)

Answer 15

for a dismissal to be fair an employer must show the employee was dismissed for one of the justified reasons in ss2 OR some other substantial reason

Question 16

summary of s98(4)

Answer 16

range of reasonable responses test the courts consider if the employer acted reasonably and in accordance with equity to determine if the dismissal was fair or not

Question 17

What is meant by ‘in accordance with equity’

Answer 17

if other employees were dismissed/treated the same way

Question 18

cases relating to fairness test s98(4) + ruling

Answer 18

Iceland Frozen Foods v Jones – a tribunal must not make a ruling based on their own decisions on if the dismissal was fair or not, they must decide if the employer acted reasonably in the circumstances.
Confirmed in Post office v Foley

Question 19

Pros and cons of this test

Answer 19

• very wide scope offers protection to employers but not employees
• doesn’t allow judges to include their idea of fairness, good because no discretion bad because less flexibility

Question 20

Case related to dismissal for capability or qualifications (this includes poor performance)

Answer 20

Tayside Regional Council v McIntosh - mechanic fairly dismissed under s98(2)(a) after losing his driving license

Evans v Bury Football Club - fairly dismissed after the new owners wanted a qualified physio

Question 21

Explain dismissals for conduct…

Answer 21

This can be a single act of gross misconduct or a serious of less serious ones that culminate in dismissal

Question 22

what is a summary dismissal

Answer 22

dismissal without payment in lieu of notice

Question 23

case related to an employee being fairly dismissed for conduct outside of work…

Answer 23

Singh v London County Bus Service - convicted of fraud outside of work but was dismissed, argued the dishonesty meant he couldn’t be trusted with dealing money. Court agreed and he had been fairly dismissed

Question 24

Examples of conduct dismissal…

Answer 24

• Theft
• Physical violence
• Persistent lateness
• Insubordination: there is a implied term that says employees must comply with reasonable instructions, if they do not this insubordination may result in fair dismissal for conduct. NB: if an employee won’t do something that is a conduct issue, if they cannot do something that is a capability issue. Tourette’s would be a capability issue.
• Alcohol/drugs: the NB above becomes relevant here. If you are an alcoholic and have lost the ability to chose this is a capability issue. If the incident is related to a bender then this is a conduct issue.
• Misuse of IT/social media
• Bullying

Question 25

Fair reasons for dismissal…

Answer 25

s98(1) 
capability/poor performance/lack of qualifications 
conduct 
redundancy 
statutory restriction 
SOME OTHER SUBSTANTIAL REASON

Question 26

Explain dismissal for statutory restriction + case

Answer 26

very limited e.g. someone is dismissed because they do not have the correct working permit/driving license

Bouchaala v Trusthouse Forte Hotels Ltd – The tribunal found that a genuine mistaken belief that the employment of C was in breach of immigration rules was sufficient to justify dismissal.

Question 27

Purpose of SOSR’s

Answer 27

no statutory definition to give it a wide scope in catching dismissals that are fair

Question 28

Examples of dismissals for SOSR’s…

Answer 28

 Expiry of fixed term contracts
 Third party pressure: essentially a 3rd party is pressuring the employer to dismiss an employee e.g. Baby P case, pressure from the press to sack the head of child services. They did do this but didn’t do it properly therefore she was entitled to unfair dismissal.
 Refusal to accept changes to terms and conditions
 Personality clashes: this is not always accepted as a substantial reason
 Breakdown in trust and confidence: this needs to follow on from an event, e.g. making a bad judgement call rather than a conduct incident (a specific event). Judges scarcely allow judges to rely upon this to avoid employers exploiting it. If this has a low threshold employers would abuse it.
 Conflicts of interest

Question 29

What do judges look at in deciding if the dismissal was fair under s98(4)…

Answer 29

o Investigating the situation,
o Consulting with the employee,
o Warning the employee of the risk of dismissal,
o Giving the employee the opportunity to state their case,
o Exploring the possibility of redeployment, and
o Balancing the needs of the employer and employee.

Question 30

What do judges look at to determine if the dismissal for capability/poor performance (s98(2a) was fair (s98(4)?

Answer 30

o Whether the employee knew what was expected of them
o Did the employer take steps to minimise the risk of poor performance?
o Did the employer provide training and supervision?
o Whether it warned the employee of the consequences of failing to improve
o Whether it gave the employee a chance to improve, and, in some cases,
o Whether it considered alternative employment before dismissing.
o The employer should have made some steps to improve the performance e.g. supervision, training
o The employer must have explained the employee they are failing

Question 31

when will a single act of poor performance justify a dismissal?

Answer 31

Alidair v Taylor - if the mistake could have had drastic consequences e.g pilots, train driver

Question 32

How is it established the dismissal (s98(2b) for conduct was fair (s98(4) + case…

Answer 32

• The employer must show at the time of dismissal, the employer…:
  o believed the employee to be guilty of misconduct, and
  o had reasonable grounds for believing that the employee was guilty of that misconduct, and
  o carried out as much investigation as was necessary in the circumstances.
  o These are the Burchell Principles

If there is a conduct dismissal you MUST talk about Burchell

Employers are not held to the same standard as the courts, they do not need to prove that she had committed theft beyond reasonable doubt, the requirement is much lower

Question 33

what is a reasonable investigation procedure?

Answer 33

depends on the facts of the case, the more serious the allegation to more thorough the investigation

Question 34

Who should investigate the circumstances prior to a conduct dismissal? + case

Answer 34

no one involved in anyway can be in the disciplinary process, they also cannot have more than one role. -
Carmelli Bakeries v Benali - D was the investigator and involved in the allegation. C’s claim for unfair dismissal for conduct was successful because the investigation wasn’t fair

Question 35

Fairness and statutory restriction

Answer 35

• The tribunal will consider:
• The extent of the statutory restriction and the extent to which it affects the employee’s ability to do their job, and;
• the duration of the statutory restriction, and;
• any alternatives to dismissal by way of adjustments to the job or alternative employment.

Question 36

explain fair dismissal procedure

Answer 36

For a dismissal under s98(2) to be fair, there must be a sufficient reason and in order to act ‘reasonably’ the employer MUST also follow the a fair procedure or this will be an unfair dismissal
MUST talk about polkey or will lose marks

Question 37

What is the fair dismissal procedure?

Answer 37

1) Fair reason for dismissal
2) Employer must have acted reasonably
3) Employer must follow a fair procedure

Question 38

Explain Polkey

Answer 38

C was made redundant on the spot. He claimed this was unfair, following the case law in British Labour Pump v Byrne, D held he was not liable because of the no difference rule (i.e. even if you did follow the correct procedure the outcome would be the same). The HL held - HL held procedural fairness was an integral part of assessing the reasonableness of the employer. A reasonable employer will ALWAYS follow the procedure

Question 39

How is ACAS code of practice relevant here

Answer 39

In dismissal for POOR PERFORMANCE AND CONDUCT AN EMPLOYER HAS TO:
 Investigate the issues;
 Inform the employee of the issues in writing;
 Conduct a hearing with the employee;
 Inform the employee of the decision in writing, and;
 Give the employee the right of appeal against that decision.
- Failure to follow procedure can lead to a 25% increase/decrease in compensation

Question 40

Elements of ACAS:

Answer 40

1) states fair procedure for dismissal if for poor performance/conduct
2) sanctions for misconduct
3) employers must deal with grievances properly

Question 41

Right to be accompanied at a disciplinary hearing

Answer 41

s10 Employment relations act 1999

Question 42

Most common cause of wrongful dismissal claims

Answer 42

breach of a notice term e.g. contractual notice, statutory minimum notice, or reasonable notice; breach of contractual disciplinary or redundancy procedure i.e. they fail to follow procedures; termination of a fixed term contract before its expiry