Fair Dismissal

Question 1

3 acts related to fair dismissal

Answer 1

Employment Act 2002

ACAS 2009

Employment Rights Act 1996

Question 2

Dismissal occurs when:

Answer 2

Employer terminates the contract, either with or without giving notice

Fixed term contract ends and is not renewed

Employee leaves, with or without giving notice, in circumstances in which they are entitled to do so because of the employers conduct

Question 3

5 fair reasons for dismissal:

Answer 3

1. Capability of qualifications
2. Conduct
3. Redundancy
4. Statutory ban
5. Other substantial reason

Question 4

Capability of Qualifications

Answer 4

“skills, aptitude, health or any other physical or mental quality”

Employer should identify and act in any training needs that exist

Question 5

Capability Case

Bs v Dundee City Council (2013)

Answer 5

Employee with 35 years of service was absent for more than year. Had a number of illness and personal problems and good doctor indicated he might be ready to go back to work in 1-3 months. Employee was dismissed on various it was too long. Employer did not take reasonable steps or investigate the issue.

Question 6

Conduct

Answer 6

Two categories:
Gross misconduct - can result in dismissal without notice. Can include theft, adult, vandalism, and falsification of records.

Misconduct- less serious offence. Usually dealt with via disciplinary warnings. If behaviour does not cease, there is the possibility of dismissal. Can include bad language, or time keeping and won’t

Question 7

Conduct case

BHS v Burchell (1980)

Answer 7

Burchell dismissed because of irregularities of staff purchases. Evidence obtained from dockets. Demonstrates need for reasonable belief in employee being guilty being based on investigation

Question 8

Conduct case

McCafferty v Royal Mail

Answer 8

Couldn’t come to work due to transport issues. Line manager have taxi pin. Employee continued to use it. Was then dismissed. Tribunal rules it was fair.

Question 9

Redundancy

Answer 9

Listed in employment Rights act 1996. Employees are regarded as redundant if their dismissal are attributed, primarily, or partly, to one of three reasons:
1. Employer has ceased the business
2.

Question 10

Redundancy case

Bundle v Percival Boats (1969)

Answer 10

Bundle employed as boat builder. Company moved from traditional wood boats to making from fibreglass. Bundle could not adapt and was dismissed

Question 11

Retirement

Answer 11

RETIREMENT IS NO LONGER FAIR DISMISSAL

Question 12

Wrongful Dismissal

Answer 12

Occurs when employer terminates contact but breaches it. Most commonly by not giving full notice period.

Question 13

3 stages employer should take:

Answer 13

1. Inform employee in writing of alleged offence
2. Meet with employee to discuss offence. Legally can be represented by trade union or colleague
3. Employee should have opportunity to appeal against any sanction

Question 14

Qualifying period

Answer 14

Employees employed after 6th April 2012 require continuous service for at least 2 years to cousin unfair dismissal. Exceptions:
Trade union membership
Pregnancy
Maternity or adoption
Asserting a statutory right
Claiming minimum wage
Working time regulations rights

Question 15

Constructive dismissal

Answer 15

When employee resigns due to employer actions. Must amount to a fundamental breach in employment contract. Must resign in timely manner and must be because of the breach.