Topic 5: Job Security and business reorganisations COPY Flashcards
Standard of fairness is the same if it is an SOSR dismissal:
Ssekisonge
Kent CC v Gilham
Differing outcomes from ETs “reasonable employer test” upheld:
involved an industrial dispute by dinner staff in schools who refused to accept a pay cut and this led to dismissals (redundancies). There were tribunal cases brought throughout the country.
Ground for appeal: different decision made in Kent then another place based on the same facts and circumstances.
The EAT took the view that this did not matter that different ET came to different decisions if all of them had considered all the issues and applied the reasonableness test appropriately. This is a huge issue and problem.
Only qualifying employees
Who can bring a claim for unfair dismissal?
- It indicates that tribunals are not supposed to overturn employers’ decisions just because they disagree with them. The Iceland formulation helps to remind tribunals of their proper role. It makes the system more predictable: employers know that if they stay in line with generally accepted practises, their dismissal decisions are likely to be upheld.
Advantages of the ICeland tesst
If employee resigns without notice for no good reason, this is a summery dismissal and the employer does not need to pay them.
Summery dismissal
Hadjioannou
Tried to introduce a proprotionality test
involved a decision of a casino by an employee for socialising with gamblers – this was a breach of the rules. However, employee argued that other employees socialised with gamblers and had not been dismissed so was disproportionate to dismiss him for this reason. Held: this was not relevant – what mattered was the response of the employer in the gravity of the employees conduct.
Notcutt v Universal Equipment
Terminations not amounting to dismissal
- Frustration
An event that renders the performance of the contract impossible or unlawful terminates the contract at common law by frustration without the choice or consent of the parties – therefore, no dismissal.
Facts: doctor advised that the employee would never work again after a heart attack a disabling illness frustrated contract – but this predated disability legislation and would be dealt differently today.
Horst [1997]
redundancy despite mobility clause:
Facts: The place where employee employed is to be determined by “a consideration of the factual circumstances which obtained until the dismissal”.
- Approved the Bass Leisure Test.
Facts:
- Silver-service waitresses’ terms of employment contained mobility clauses, but in practice the applicants had worked for one particular client,. In 1993, cuts in Hill Samuel’s budget necessitated a re-organisation which resulted in the need for fewer waitresses working longer hours, and the applicants were dismissed.
- CA Held: The applicants were redundant. Rejected the argument that ‘the place where the employer was so employed’ extended to every place where the employee could be required to work.
Peter Gibson LJ: “If an employee had worked in only one location under his contract of employment for the purposes of the employer’s business, it defies common sense to widen the extent of the place where he was so employed, merely because of the existence of a mobility clause.”
Further “It would be unfortunate if the law were to encourage the inclusion of mobility clauses in contracts of employment to defeat genuine redundancy claims”
Leach v OFCOM
COURT OF APPEAL
Potentially fair reason: SOSR
CA gives a general warning: SOSR was not to be used as a “convenient label” to stick on any situation where an employer feels let down, or a conduct reason is not available or appropriate
There must be a particular reason the Tribunal believe is a potentially fair reason
What is dismissal in the context of an EA 2010 claim?
- Brought by an employee (as defined in the EA).
If dimissal is discriminatiory and arises from prohibited conduct because of a PC = s39.
There is no continuity rules or formal ceiling on damages s124.
Preliminary steps to take when discussing unfair dismissal?
- Only available to employees, s94
- Qualifying period, s108 – 2 years continuous employment required unless employee can show that the dismissal was for an “automatically unfair” reason
- Claim for unfair dismissal brought before an ET
- Three month (s111) to bring a claim.
there is scope for justifying direct or indirect age discrimination if the scheme adopted is proportionate to its legitimate aims under the permitted exceptions in the EA:
- – length of service criterion upheld. Although discriminated against young people was a proportionate means of achieving legitimate aim.
- Length of service criteria may be a proportionate responce so not UD
Rolls Royce v Unite
Ssekisonge
Potentially fair reason: SOSR
Uncertainty over the claimant’s identity was an SOSR for dismissal was found to be an SOSR.
Immigration status for employment and uncertainty over claimant’s identify and they were dismissed for this reason (did not know correct identify). Held: SOSR reason.
Simmonds v Milford
previous warnings taken into account, might be sufficient to show fair procedure.
General criticisms of the band of reasonable responces test:
- it is argued that the test does not allow tribunals to set standards for employers’ behaviour. It encoruages them to reflect “what some employers” might do, rather than making an independant determination of what is fair or unfair. This allows for harsh situations
- The statute itself uses the phrase “reasonably or unreasonably”, thus, the Iceland test is wrong because it does not reflect the true meaning of the statute.
the burden of proof is on the employee to show there has been a dismissal.
“Whatever the respective actions of the employer and employee at the time of termination, the question always remains ‘who really terminated the contract of employment?’”
- If there is such as a big argument, one party says you are fire, another says you resign. In this situation, the test is: This will be a finding of fact by the tribunal
Martin v MBS
CA
Employers must also have regard to the ACAS Code of Practice on ‘Disciplinary and Grievance Procedures’. Where summary dismissal
- ‘one insolent outburst’ was sufficient to justify summary dismissal on the facts – continuance of the contract of service was impossible.
Held, (1) that the defendant was justified in dismissing the plaintiff summarily because (per Harman and Russell, L.JJ.) the plaintiff’s insolent conduct amounted to a repudiation of his contract or (per Karminski, L.J.) the plaintiff had wilfully disobeyed a lawful and reasonable order.
Facts: Involved a gardener and there was at a certain stage an insolate outburst by the gardener in response to being required to plant something. As a result, the employer dismissed them on the spot. On the facts, because employer for many months had been unwilling to do the work – making remarks refusing to do thing. In this context, it was found sufficient for summery dismissal.
Pepper v Webb
Yes
It is also possible to bring a claim under the EA, if it is alleged that the redundancy decision or procedure follow is directly or indirectly discriminatory because of a protected characteristic.
Can an employee claim unfair dismissal (if there was an economic dismissal), if the reason for redundancy by the employer when dismissing, or the procedure that followed is flawed or unlawful?
Cockram
if the employee gives longer than the normal contractual notice period this is affirmation of the breach.
Clarke v Eley
The redundancy must not violate equality law – if it does a separate claim can be brought under the EA in addition to any claim under the ERA
selection of only part-time workers for redundancy amounted to indirect sex discrimination
Pepper v Webb
Employers must also have regard to the ACAS Code of Practice on ‘Disciplinary and Grievance Procedures’. Where summary dismissal
- ‘one insolent outburst’ was sufficient to justify summary dismissal on the facts – continuance of the contract of service was impossible.
Held, (1) that the defendant was justified in dismissing the plaintiff summarily because (per Harman and Russell, L.JJ.) the plaintiff’s insolent conduct amounted to a repudiation of his contract or (per Karminski, L.J.) the plaintiff had wilfully disobeyed a lawful and reasonable order.
Facts: Involved a gardener and there was at a certain stage an insolate outburst by the gardener in response to being required to plant something. As a result, the employer dismissed them on the spot. On the facts, because employer for many months had been unwilling to do the work – making remarks refusing to do thing. In this context, it was found sufficient for summery dismissal.
Wrongful dismissal
Mitigation - a successful claimant must mitigate his/her loss, for example, by looking for alternative employment
- failure to mitigate loss may lead to reduction in award of damages.
- Question of fact by ET or court to ask what a reasonable job for the employee to take based on their status.
Yetton
Edwards
+
Botham
SC
Joint cases
Influences by Johnson
This case has led to uncertainty about the present state of law.
- This is a more recent case than Johnson.
- The claiamnt sought to go beyond the Gunton approach and to seek damages for loss of earnings brought about by his employer’s failure to follow his contractual disciplinary procedure.
Facts of Edwards: Edwards was a consultant who was accused of inappropriate conduct towards a patient. It was alledge that his employer failed to follow his contractual disciplinary procedure in full.
Facts of Botham: A youth worker had been accused of inappropriate behavious towards young people in his care and was dismissed without full compliance with a contractual disciplinary process.
In both cases, the dismissals had devastating effects on the individual’s career prospects. In both cases, it was alledged that had the disciplinary procedures been followed properly, they would not have suffered damage to their reputations and ability to obtain another job.
7 member Supreme Court, which was split 4/3 on the result.
Majority held: That the claimants were precluded from recovering substancial damage because of the decision in Johnson v Unisys. (This is strange because Johnson dealt with an implied term of mutual trust and confidence whereas Edwards was concerned with contractually agreed disciplinary procedures.
Held:
- The Johnson exclusion area applies to claims for damages arising out of breaches of contractual disciplinary procedures as well as to claims based on the implied term of mutual trust and confidence.
- Found on the facts the claims by Edwards and Botham both fell within the Johnson exclusion area and so failed.
Lord Phillips: took a different route:
- He thought the focus on parliamentary intention in the other majority judgments was artifical excerse
- He preferred to develop the common law approach, starting with Addis and treating th eissues as one of remoteness or causation
- The Malik case was distinguished because “the stigma damages recognised were not caused by wrongful dismissal”.
Eastwood
narrow interpretation put on ‘Johnson exclusion zone’
Facts: employees claimed for breaches of the implied term of mutual trust and confidence which had arised during disciplinary proceedings which eventually led to their dismissal. The employer behaved appallingly. As a rusult the employees suffered serious pyschological injury with the effect that they were unfit to work.
HL HELD: Confined Johnson decision to the dismissal itself. If the employee’s claim arose during the period leading up to the dismissal, it was not precluded by the fact that the employees were eventually dismissed. But the employee’s psychological injuries or other losses resulted from the fact of dimissal, a claim would be precluded by johnson.
Sothern v Franks
this concerned a partnership secretary in a solicitor firm who said “I am resigning” in an ongoing dispute.
CA in absence of other evidence, then the natural meaning of the words could not be overridden by what a reasonable employer would have assumed. Therefore, if you do say I am resigning, -you are judged by the standards of the reasonable employer.
Fox J - The essential question in the case is the meaning to the given to those words. Are they ambiguous or are they unambiguous? The Industrial Tribunal, as I have mentioned, held that if the words constituted a resignation in unambiguous terms that was the end of the matter. = ambiguoity is important
He accepted that there might be exceptions: ‘this is not a case of an immature employee, or of a decision taken in the heat of the moment, or of an employee being jostled into a decision by the employers.’
Relevant:
- Sothern was not an unexperienced employee; and
- this was not in the heat of the moment.
Kwik -Fit v Lineham distinguished
Misconduct case: reasonable belief in guilt even if the employee may have been innocent – dismissal within band of reasonable responses.
- Theft from a betting shop - only two employees on duty.
- Employer was sufficiently suspicious of them both.
- Found: on evidence that the tribunal was entitled to find the employer had a reasonable suspicion at the time of dismissal, even though it was possible that the employees were innocent.
- The dismissal was in the band of reasonable responses
Monie v Coral Racing
Is redundancy a potentially fair reason under unfair dismissal law?
yes
Haddon
In late 1990s, the EAT sought to replace Iceland with a basic test of fairness saying Iceland test was perverse. But the CA rejected this in Madden and Foley
Davis suggested three categories for UD. However, she notices that the legislator did not make seperate provisions in relation to each right. This approach, she said was “unnecessarily complicated” and there was a risk that it might fail to provide comprehensive protection.
Crticisms of the unfair dismissal categories
A bank dismissed an employee who was suspected of dishonesty after they carried out an investigation.
Tribunal said: big organisation not a sufficient enquiry – outside reasonable responses
CA took the view that this was the ET substituting itself as the employer, it should have applied standard of reasonable employer, not reasonable tribunal could have found it was not within reasonable responses because bank had conducted an enquiry. The bank had not found any other employee might have committed the crime and this is what a reasonable employer might have dismissed.
Critcisism: This was inhouse, not reported to the police. This would have been on their record if being dismissed. Perhaps a better investigation should have taken place
Madden
it was alleged that a school employee failed to disclose a relationship with a person convicted of serious criminal offence – ET – fair dismissal. SC - Lady Hale (obiter) questioned the appropriateness of the reasonableness test in BHS v Burchell and also whether it could be a fair dismissal if the alleged conduct was not a breach of contract.
Reilly v Sandwell MBC [2018] UKSC
Bombardier
Also, the mere fact of a redundancy situation does not mean that redundancy is the principal reason for dismissal - look out for other reasons for selection for redundancy that may be a basis for claiming that it is an automatically unfair reason for dismissal (with no qualifying period) would have to show that this is the principal reason for dismissal and not redundancy:
In wrongful dismissal, if you are an employee will you bring your case to the ET or in the civil courts?
Damages are the only remedy available if a wrongful dismissal claim is brought in the ET, only up to £25,000. The civil courts can award damages too, with no upper limit, and have additional powers of remedy
Robinson v Bowskill
For the purposes of calculating continuous employment, the EDT will be extended if the employee does not receive the statutory minimum period of notice:
it is the date the employee is informed (in this case by her solicitor) even if a day earlier than the day she reads the dismissal letter.
- Employees solicitor informed them that they were told by employer that the letter was in the post. The next day they got the letter, this made a different. Held: fact solicitor told them the day before meant they had been informed.
The Court of Appeal (CA) confirmed that the position was that, in cases where there may have been an earlier repudiatory breach which has been affirmed by the employee, if there is subsequently conduct which, taken together with the employer’s earlier fundamental breach, causes the employee to resign or plays a part in the decision of the employee to resign, the later act effectively reactivates the earlier repudiatory breach. The employer’s further act can be described as “reviving” the employee’s right to terminate the contract.
Kaur
CA
Sarkar v West London
Unclear whether a tribunal is asserting its own opinion or not
assessing whether the ET has substituted its own view is difficult. Here the EAT and CA reached different conclusions on whether tribunal had substituted its own opinion
What percentage of employees are re-employed/ re-enageged?
About 5%
Can an employee claim unfair dismissal (if there was an economic dismissal), if the reason for redundancy by the employer when dismissing, or the procedure that followed is flawed or unlawful?
Yes
It is also possible to bring a claim under the EA, if it is alleged that the redundancy decision or procedure follow is directly or indirectly discriminatory because of a protected characteristic.
Misconduct case: where a serious allegations of criminal behaviour. There must always be the subject of the most careful investigation. While it is unrealistic and inappropriate to require the safeguards of a criminal trial, a careful and conscientious investigation of the facts is necessary
- EAT said it would be unrealist and inappropriate if the same standards were applied as in a criminal law case, but there must still be a careful and conscientious investigation.
A v B
As well as his/her wages, the successful claimant may be able to claim for the value of fringe benefits during the notice period (plus any Gunton extension) – provided there is a contractual entitlement to those fringe benefits, see:
Lavarack
narrow interpretation put on ‘Johnson exclusion zone’
Facts: employees claimed for breaches of the implied term of mutual trust and confidence which had arised during disciplinary proceedings which eventually led to their dismissal. The employer behaved appallingly. As a rusult the employees suffered serious pyschological injury with the effect that they were unfit to work.
HL HELD: Confined Johnson decision to the dismissal itself. If the employee’s claim arose during the period leading up to the dismissal, it was not precluded by the fact that the employees were eventually dismissed. But the employee’s psychological injuries or other losses resulted from the fact of dimissal, a claim would be precluded by johnson.
Eastwood
it can be fair to dismiss on the recommendations of an external consultant. The bringing in the external consultant might be to show who should be dismissed.
GM Packagingv Haslem
Temple Bird
the EAT overturned the tribunal’s finding of a fair dismissal when the claimant was selected for redundancy, notwithstanding that she had scored higher than the other person at risk. The EAT held that the decision to select someone for redundancy had to be sufficiently objective and must “withstand close scrutiny”.
A criterion such as “the overall requirements of the business” was found to be too subjective. It was a “statement of the obvious”. The object of any redundancy exercise is to retain those employees who are best equipped to enable the company to trade profitably in the future. Those employers who wish to use the criterion “the overall requirements of the business” would, said this tribunal, have to place all members of the workforce into the selection pool.
The redundancy must not violate equality law – if it does a separate claim can be brought under the EA in addition to any claim under the ERA
selection of only part-time workers for redundancy amounted to indirect sex discrimination
Clarke v Eley
Collins points out that dismissal may be fair even though they can be seen as “harsh”. E.g. where an empployee asks the boss if he can leave early because his wife is ill. The boss agrees but later on another member of staff see the employee at the pub. Although the employee has never done anything wrong before, the employer takes the view that the employee is not to be trusted and dismisses him. (This is similar to what happened in Foley).
The band of reasonable responses test means that once a tribunal has found that some employees would dismiss in this situation, the dismissal is not unfair, even if other employers would have imposed a lesser penalty.
Criticisms of the band of reasonable responses test?
Atkinson
Not necessary at stage 1 whether employee is also in repudiary breach of the contract
Even if employee had committed acts of misconduct, , if employer is in breach this is still a constructive dismissal. The fact of employee’s misconduct will be relevant at a later stage, mainly the damages.
Atomic Energy v Claydon
‘place where the employee was so employed’ – scope of contractual mobility clauses:
Facts: Employees terms and conditions required him to work at any other establishment. He refused to move to new location and was dismissed. Held: Accepter employer’s argument that the need for employees had not ceased in the placed where he was employed because he was obliged to work anywhere under the terms of the contract. Found that the employee’s refusal to work in another office amounted to disobedience; employee was therefore fairly dismissed for misconduct and was not entitled to compensation.
For the purposes of calculating continuous employment, the EDT (effective date of termination) will be extended if the employee does not receive the statutory minimum period of notice:
The effective date of termination is the date on which the employee knows he or she is being dismissed.
- Simply having a date on a letter, but if letter is not received until a week later, and can be shown as evidence, then it will be the later date.
FACTS: On the day the letter arrived at M’s home (9 November 1995), M was away on a trip and he did not return and read the letter until the next day.
- The EAT held that the effective date of termination of a contract of employment cannot be earlier than the date on which an employee receives knowledge that he is being dismissed.
- A tribunal is likely to assume that letters usually arrive in the normal course of post and that people would normally open their letters promptly after they arrived. An employee would not therefore be able to postpone dismissal by deliberately avoiding opening the letter.
McMaster
Redundancy
what is ‘work of a particular kind’?
- dismissal for refusing to work new shift system – not redundancy, no diminution of requirements for the employees’ work – job function test
Nolan
James v Tipper
Redundancy
Motive not relevant, following moon v homeworthy.
Safeway Stores v Burrell
Redundancy– what is ‘work of a particular kind’?
shift from job function/contract tests – replaced with a factual test. Two questions:
- Has there been a reduction in the workforce because of a business reorganisation?
- Is the dismissal connected to that reduction?
If yes to the factual and causation question then there is a redundancy - this was approved by the HL in Murray.
530 dismissed out of 7,000 - right to discovery of documents about selection criteria.
British Aerospace v Green
Kwik-Fit v Lineham
An employer may not be able to rely upon a resignation made by an employee which had obviously been made in the heat of the moment. Constructive dismissal might still be a possibility.
- If words are unambiguous then prima facia, employer is entitled to treat them as such, but personalities are an important consideration
- Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual make-up of an employee may be relevant: These we refer to as `special circumstances’.
- Where `special circumstances’ arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse
Different from Sothern:
- threw keys on the counter and drove off, the next day he asked for outstanding wages and said he would go to a tribunal.
Facts:
Employee at kwik fit was manager of the garage and on the way home he popped into the office and used the toilet. He was seen and employer decided to issue him with a written warning in front of all his colleagues, he reacted badly, he threw down his keys on the counter and drove off. The next day he asked for his outstanding wages and said he would go to tribunal. Was employer entitled to treat this as a resignation. Held: no.
Employer should have allowed a reasonable time this was the heat of the moment should have made further enquiries as to whether resignation was intended.
The parties cannot contract out of the unfair dismissal legislation, but they can reach a settlement agreement in which the employee agrees not to litigate their claim subject to independent legal advice.
Facts:
An employee allowed to take leave beyond normal holiday entitlements to visit family abroad. Employer required them to sign statement that if she does not return to work the contract would be terminated. She could not return by the date set because she was unwell, but employer treated this as end to contract, she claimed unfair dismissal – was this a settlement agreement. Held: she claimed unfair dismissal, agreement was void because it tried to contract out the unfair dismissal act.
Igbo
- WD based on breach of contract (applies to workers as well as employees) - not an evaluation of fairness of dismissal – action in ET or civil courts
- WD no qualifying rule - workers must use civil courts – contract claim – employees can go to ET or civil courts
- UD limited to qualifying employees – 2 years continuity
- UD based on reasonableness of the decision to dismiss for the potentially fair reason in question – ET
- UD - 3 month limit for claims; WD – 6 years in civil courts
- UD – cap on compensation (lower for most employees) – no cap on damages for WD
Difference between Wrongful dismissal and unfair dismissal?
Morrow v Safeway Stores
breach of duty of mutual trust and confidence always amounts to a fundamental breach.
Practicable - not the same as possible:
If close relationship in employment (strong relationship of trust in small business perhaps), and not possible to reengage them to another position, only where close relationship reinstatement would only be practical in few situations.
SAID OBITER: It was not realistic to make an order of this nature in a case where the parties involved were in close personal relationship to each other as they were in the present situation. It is one thing to make an order for reinstatement where the employee concerned works in a factory or other substantial organisation. It is another to do so in the case of a small employer with few staff. Where there must exist a close personal relationship as is the case here, reinstatement can only be appropriate in exceptional circumstances and to enforce it upon a reluctant employer is not a course which an Industrial Tribunal should pursue unless persuaded by powerful evidence that it would succeed.”
Emnesy
Abernethy v Mott
Written statement: Where an employer uses an incorrect “label” at the time of dismissal this does not prevent another reason for dismissal being proved at the industrial tribunal hearing.
- Employer knew reason for dismissal, but did not give that reason to the employee - it was misdescribed.
EXCEPTION: I sufficient evidence that employer is simply being kind to the employee by givign a false reason.
But this is unlikely to be accepted today because of the greater emphasis in transparency.
FACTS: At the industrial tribunal hearing Mr Abernethy relied on the fact that he had been told he was being dismissed for redundancy when it turned out there was no redundancy situation. In fact he was being dismissed because the employer had wished to transfer him from head office to a site, and he had refused. Held: The Court of Appeal rejected the appeal and held that an incorrect “label” used by an employer at the time of dismissal does not prevent another reason being proved at the industrial tribunal hearing. The reason for dismissal is the set of facts known to, or the beliefs held by, the employer, which cause him or her to dismiss the employee. The reason given at the time of the dismissal may be evidence of the real reason, but does not necessarily constitute the real reason.
Redundancy– what is ‘work of a particular kind’?
shift from job function/contract tests – replaced with a factual test. Two questions:
- Has there been a reduction in the workforce because of a business reorganisation?
- Is the dismissal connected to that reduction?
If yes to the factual and causation question then there is a redundancy - this was approved by the HL in Murray.
Safeway Stores v Burrell
Automatically unfair reasons
- Where the employee has two years or more continuious employemnt, the normal rule applies, namely it is for the employer to show the reason for dismissal.
- However, where the employee has less than two years’ service: he or she will acquire the burden of proving that the reason for dismissal was an automatically unfair reason.
Smith v Hayle
sexual harassment by employer in context was a fundamental breach.
Wood
Redundancy: what is ‘work of a particular kind’?
work was ‘too good and too slow’ – dismissal was not a redundancy – the employer’s needs for ‘work of a particular kind’ had not changed
Hindle
Sandhu
Appellant called to disciplinary meeting and told that he would be dismissed for misconduct. He negotiated a retirement package and left on its terms. The Tribunal found that he had left voluntarily and was not dismissed.
Held that the Tribunal was entitled, having asked the correct question – which caused him to leave – to find that he had left because of the package
What are the three automatically unfair dismissal categories?
- Asserting individual rights
- trade union activities
- other forms of colelctive consultation
Redfearn v UK
proportionality should be applied if human rights infringed
Guidance of European court of human rights. Bus driver who was dismissed because of concerns about him and was this a dismissal because of religion or belief (political belief), this case was brought in as a PC. He sought unfair dismissal and if he was able to show he was dismissed contrary to freedom of association of political party, this would be a breach of the convention and any dismissal should have been proportionate.
Differing outcomes from ETs “reasonable employer test” upheld:
involved an industrial dispute by dinner staff in schools who refused to accept a pay cut and this led to dismissals (redundancies). There were tribunal cases brought throughout the country.
Ground for appeal: different decision made in Kent then another place based on the same facts and circumstances.
The EAT took the view that this did not matter that different ET came to different decisions if all of them had considered all the issues and applied the reasonableness test appropriately. This is a huge issue and problem.
Kent CC v Gilham
Salford Royal NHS Trust v Roldan
CA
Misconduct case: not a first offence or repeated minor misconduct – should have been given a written warning
- It would not be within a band of reasonable responses if it was a first offence that was not too serious or repeated minor misconduct.
- At the very least, there should have been a written warning, warning agaisnt dismissal.
Murray v Foyle
Facts: claimants worked at an abattoir, usually working in a slaughter hall, but under their contracts, they could be required to work elsewhere in the factory too. For economic reasons, the employer decided to cut down its slaughtering activities so made the claiamnts redundant.
They argued that the concept of diminishing requirements for employees to do “work of a particular kind” should be construed to include the work they could do under their contracts. This would mean that a much larger proportion of the employer’s workforce - not just those in the slaughtering hall -would be up for redundancy.
However, the HL rejected this argument, holding that tribunals should focus primarily on what the employees did in fact, and not on their work defined int he cotnract of employment.
Redbridge v Fishman
Potentially fair reasons: conduct
They were a school manager who was asked to undertake teaching – they refused and was dismissed. Could employer rely on misconduct as a potentially fair reason? Held: yes but found applying reasonableness test (Stage 4) that it was unfair because they were not obliged to obey.
More Difference between Wrongful dismissal and unfair dismissal?
- limited to employees – ERA s94(1) - contrasts with claims for wrongful dismissal which, based on the contract, can be brought by workers as well as employees. (Note that under the 1994 Extension of Jurisdiction Order only employees have the right to bring a wrongful dismissal claim in the ET; a worker would have to litigate his/her claim in the civil courts).
- subject to continuity rules - qualifying period of two years in most cases: ERA s108. Contrast that with wrongful dismissal claims and EA claims which have no continuity requirement.
- normally subject to a three-month time limit for bringing claims. By contrast wrongful dismissal claims are subject to the normal limitation periods for contract actions (6 years) unless they are litigated in the ET in which case a three-month time limit will also apply (1994 Extension of Jurisdiction Order, Art 7).
- subject to a cap on the compensatory award. There is no cap on the amount awarded for breach of contract in a wrongful dismissal action or in respect of an EA claim.
what is practicable? It is not the same as possible.
- This is not the same as not possible, it is whether it is practicable.
- In this case, 12 trade union stewards were dismissed found they had been unfairly selected for redundancy. The tribunal had ordered their reengagement.
- CA said reengagement was possible but not practicable because employer although rejected employers defence of no vacancies, there were relevant economic situations. The employers business situation might be taken into account.
Port of London Authority v Payne
reasonable to dismiss after accumulated warnings.
lead to a reasonable employer after a number of warnings to dismiss.
Wincanton v Stone
- Only available to employees, s94
- Qualifying period, s108 – 2 years continuous employment required unless employee can show that the dismissal was for an “automatically unfair” reason
- Claim for unfair dismissal brought before an ET
- Three month (s111) to bring a claim.
Preliminary steps to take when discussing unfair dismissal?
Advantages of the ICeland tesst
- It indicates that tribunals are not supposed to overturn employers’ decisions just because they disagree with them. The Iceland formulation helps to remind tribunals of their proper role. It makes the system more predictable: employers know that if they stay in line with generally accepted practises, their dismissal decisions are likely to be upheld.
It is especially important.
The ACAS Code para 5-30 talks about the need:
- need for written warnings before dismissal is contemplated depending on the gravity of the allegations,
- an investigation,
- a fair hearing with representation and a
- right of appeal.
WHAI
Is procedural fairness importatant in misconduct cases?
Bass Leisure v Thomas
Departure from contractual and return to geographical. Thomas was based at the Coventry depot. Her job was to travel round the area and collect money from fruit machines. The employer wanted to close the depot but wanted Thomas to move to the North East Birmingham depot: Her clause contained a contractual mobility clause. She tried to work from the requested location, but it took too long to commute. She resigned and claimed constructive dismissal. EAT Held: She had been constructively dismissed by reason of redundancy. Her place of employed had closed. The offer of work at the alternative depot was not suitable alternative employment.
- The respondent employer’s failure to give the appellant a payment in lieu of notice when he summarily dismissed her did not amount to a deduction from wages
- A payment in lieu of notice is not “wages” within the meaning of the Wages Act where it relates to a period after the termination of the employment. Wages are payments in respect of the rendering of services during the employment, so that all payments in respect of the termination of the contract are excluded save to the extent that they are expressly included under s.7(1). Thus, payments in respect of “garden leave” are “wages” within the meaning of the Act since they are advance payments of wages falling due under a subsisting contract of employment. But all other payments in lieu, whether or not contractually payable, are not wages since they are payments relating to the termination of the employment and not to the provision of services under the employment.
- Accordingly, payments in lieu are not wages where, as in the present case, without the agreement of the employee, the employer summarily dismisses the employee and tenders a payment in lieu of proper notice;
Delaney v Staples
HOUSE OF LORDS
Also, the mere fact of a redundancy situation does not mean that redundancy is the principal reason for dismissal - look out for other reasons for selection for redundancy that may be a basis for claiming that it is an automatically unfair reason for dismissal (with no qualifying period) would have to show that this is the principal reason for dismissal and not redundancy:
Bombardier
CA – rejected approach in Haddon.
The HL in Madden re asserted the Iceland test.
HL said in Madden, that Hadden was an unwarranted departure from authority – parliament hadn’t amended the legislation.
Madden and Foley
Nelson v BBC (No. 2)
Reductions in compensation can be made where there has been contributory fault on the part of the employee, s123(6):
Atkins
HL
Procedure
- written statement
An employee’s dismissal can only be justified on facts and reasons known to the employer and in his or her mind at the time of dismissal. Evidence about the employee which comes to light after the dismissal cannot be used to justify dismissal, however damning that evidence might be.
Held by house of lords :The legislation required an employer to justify a dismissal by demonstrating first the reason for the dismissal and second that the employer acted reasonably in dismissing the employee because of this reason. The legislation limited the employer to reliance on the original reason for dismissal.
Gibbs v Leeds
employee expressed willingness to negotiate consensual termination – had been a repudiatory breach by employer – employee could still resign and claim unfair dismissal.
Kaur
CA
The Court of Appeal (CA) confirmed that the position was that, in cases where there may have been an earlier repudiatory breach which has been affirmed by the employee, if there is subsequently conduct which, taken together with the employer’s earlier fundamental breach, causes the employee to resign or plays a part in the decision of the employee to resign, the later act effectively reactivates the earlier repudiatory breach. The employer’s further act can be described as “reviving” the employee’s right to terminate the contract.
Kuzel v Roche
Potentially fair reasons Burden of proof
the employer must show there is a fair reason for dismissal
At this stage of the inquiry into fairness the employer must show there is a fair reason for dismissal – it should not be confused with whether he/she acted reasonably when dismissing the employee for that reason which is considered at the next stage.
Potentially fair reason: SOSR
Failure to reveal history of mental illness when asked at job interview. Found: SOSR
O’Brien v Prudential Assurance
Wrongful dismissal: applied Addis
must take account of limits arising from unfair dismissal legislation – known as the ‘Johnson exclusion zone’
- This did not overule its HL earlier decision in the Malik case
Johnson v Unisys
Igbo
The parties cannot contract out of the unfair dismissal legislation, but they can reach a settlement agreement in which the employee agrees not to litigate their claim subject to independent legal advice.
Facts:
An employee allowed to take leave beyond normal holiday entitlements to visit family abroad. Employer required them to sign statement that if she does not return to work the contract would be terminated. She could not return by the date set because she was unwell, but employer treated this as end to contract, she claimed unfair dismissal – was this a settlement agreement. Held: she claimed unfair dismissal, agreement was void because it tried to contract out the unfair dismissal act.
proportionality should be applied if human rights infringed
Guidance of European court of human rights. Bus driver who was dismissed because of concerns about him and was this a dismissal because of religion or belief (political belief), this case was brought in as a PC. He sought unfair dismissal and if he was able to show he was dismissed contrary to freedom of association of political party, this would be a breach of the convention and any dismissal should have been proportionate.
Redfearn v UK
Summery dismissal
If employee resigns without notice for no good reason, this is a summery dismissal and the employer does not need to pay them.
use of league tables - requirement of transparency use of league tables should be based on objective criteria.
Brown
A v B
Misconduct case: where a serious allegations of criminal behaviour. There must always be the subject of the most careful investigation. While it is unrealistic and inappropriate to require the safeguards of a criminal trial, a careful and conscientious investigation of the facts is necessary
- EAT said it would be unrealist and inappropriate if the same standards were applied as in a criminal law case, but there must still be a careful and conscientious investigation.
Logan v Celyn House
was the repudiatory breach a reason for the resignation? Yes, is constructive dismissal, does not necessarily have to be the principal reason for the resignation.
London Ambulance Service v Small
From time to time ETs fall into the trap of substituting their own views instead of applying the ‘band of reasonable responses’ of the ‘reasonable employer’ test.
Rolls Royce v Unite
there is scope for justifying direct or indirect age discrimination if the scheme adopted is proportionate to its legitimate aims under the permitted exceptions in the EA:
- – length of service criterion upheld. Although discriminated against young people was a proportionate means of achieving legitimate aim.
- Length of service criteria may be a proportionate responce so not UD
Turner
Misconduct case: band of reasonable responses test compatible with protection of human rights.
- Lord Alias found the band of reasonable responses test was compatitble with human rights. Human right issue is engaged and the culpuability of the employee must be investigated with respect to the consequences for the employee.
- The band of reasonable responses test allows for a flexibel test to be adopted where there is more serious consequences.
Harlow
The terms of the contract can enhance the payment for redundancy:
Facts: THE CLAIM was for 60,000 pounds, employer questioned the provision, it was not in the handbook but of website of company where they found employee benefits and rights section. Held: because it was on employer website it was deemed to be a contractual clause.
Chabra v West London
SUPREME COURT
– restarting disciplinary process The hospital was ordered to start the disciplinary process.
- Statutory dismissal action
- brought by the employee
- subject to qualifying conditions
What is unfair dismissal?
– restarting disciplinary process The hospital was ordered to start the disciplinary process.
Chabra v West London
SUPREME COURT
Difference between Wrongful dismissal and unfair dismissal?
- WD based on breach of contract (applies to workers as well as employees) - not an evaluation of fairness of dismissal – action in ET or civil courts
- WD no qualifying rule - workers must use civil courts – contract claim – employees can go to ET or civil courts
- UD limited to qualifying employees – 2 years continuity
- UD based on reasonableness of the decision to dismiss for the potentially fair reason in question – ET
- UD - 3 month limit for claims; WD – 6 years in civil courts
- UD – cap on compensation (lower for most employees) – no cap on damages for WD
O’Brien v Prudential Assurance
Potentially fair reason: SOSR
Failure to reveal history of mental illness when asked at job interview. Found: SOSR
Yes/
it is only under ERA s95(2) that entitled the employee to a redundancy payment.
Is it important to be a dismissal under ERA s95(2) or s95(1)
Williams v Compair Maxam
A dismissal by reason of redundancy may be unfair under ERA s98(4)
- applies band of reasonable responses test to the dismissal of the employee claiming unfair selection criteria have been used – reasonableness of the steps taken to choose the applicant rather than some other employee for dismissal – criteria must be objective not based on ‘personal whim’.
Facts: New approach. It was established there was a trade union representing employees but not properly consulted before decisions on redundancy’s made. Reasonable employer recognising trade union would consult trade union in context of making redundancies so failure to do so was outside band of reasonable responses leading to UD. Analogous to procedural fairness. If any breach in procedural fairness could lead to unfair dismissal (polkey).
Facts: claimants worked at an abattoir, usually working in a slaughter hall, but under their contracts, they could be required to work elsewhere in the factory too. For economic reasons, the employer decided to cut down its slaughtering activities so made the claiamnts redundant.
They argued that the concept of diminishing requirements for employees to do “work of a particular kind” should be construed to include the work they could do under their contracts. This would mean that a much larger proportion of the employer’s workforce - not just those in the slaughtering hall -would be up for redundancy.
However, the HL rejected this argument, holding that tribunals should focus primarily on what the employees did in fact, and not on their work defined int he cotnract of employment.
Murray v Foyle
Williams v Watsons
Frustration will be ‘rare occurrences’
Irwin
House of Lords
Potentially fair reason: “some other substantial reason” SOSR
- residual category but does not have to relate to the other listed reasons in s98(2)
- reason can be based on general business considerations but not to be blurred with redundancy.
This is an old case.
Critisisms: it goes against the whole purpose of the legislation to provide employment security (SOSR sections).
