UNFAIR

Question 1

What governs unfair dismissal in UK employment law?

Answer 1

Unfair dismissal is governed by the Employment Rights Act 1996 (ERA 1996).

s. 94 ERA 1996: The right not to be unfairly dismissed applies only to employees.

Question 2

Who does the right not to be unfairly dismissed extend to?

Answer 2

Employees only.

Question 3

What is the eligibility for unfair dismissal?

Answer 3

• Applies to employees only, not workers or the self-employed.
• Two-year continuous service requirement unless the dismissal is for an automatically unfair reason (e.g., pregnancy, whistleblowing, and health and health and safety issues under s. 99-105 ERA 1996).

Question 4

What are the time limits for a claim to be brought?

Answer 4

Claims must be brought within three months less one day of dismissal.

Question 5

What are the remedies for unfair dismissal?

Answer 5

• Basic award: Calculated based on age, years of service, and capped at 20 weeks’ pay, with a weekly cap of £700 per Employment Rights (Increase of Limits) Order 2024.
• Compensatory Award: The lesser of 12 months gross salary or £115,115.

Question 6

What are the tests (control) for employment status in unfair dismissal?

Answer 6

Control: Employer’s authority over what, how, when work is done.
Cases:
- Ready Mix Concrete v Minister of Pensions [1968] he agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master

• White v Troutbeck [2013] Not necessary for day to day control, overarching control sufficient to preclude independent status.
• Uber v Aslam [2021]

Question 7

What are the tests (personal service) for employment status in unfair dismissal?

Answer 7

Personal Service: Obligation to perform work personally.
Cases:
- Ready Mix Concrete v Minister of Pensions [1968].A contract of service exists if (i) the servant agrees that in consideration of a wage or other remuneration he will provide his own work and skill in the performance of some service for his master

• Express and Echo Publications v. Tanton [1999] – if a worker is not contractually obligated to perform services personally, the relationship cannot be one of employee and employer, and the focus must be on the contractual obligations rather than what occurs in practice.
• James v Redcats. Distinction possible between substitution clause to be used when worker is unable to work and when unwilling to work.
• IWUGB v Deliveroo [2021] A substitution clause negates personal service

Question 8

What are the tests (mutuality of obligation) for employment status for unfair dismissal?

Answer 8

Mutuality of Obligation: Employer’s obligation to provide work and employee’s obligation to accept it.
Cases:
- Carmichael v. National Power [1999] – Lack of mutual obligation meant no employment relationship, a moral obligation of loyalty merely existed.

• Stevedoring and Haulage Services v Fuller [2001]
  This case establishes that a contract cannot be created by implying terms that contradict the express terms already agreed upon by the parties.
• Cotswold Developments v Williams [2005]
  This case underscores that mutuality of obligation is a prerequisite for a contract of service, and the worker must be required to accept and perform a minimum level of work.

Question 9

What are the tests (integration) for employment status in unfair dismissal?

Answer 9

Integration: Whether the worker is an integral part of the organisation.
Case: Cotswold Developments v Williams [2005] A focus on whether the worker markets his services as an independent person to the world in general or is recruited to work as an integral part of the principal’s operation will in most cases demonstrate which side of the line

Question 10

What are the tests (economic reality) for employment status in unfair dismissal?

Answer 10

Economic Reality: Whether the worker takes economic risk.
Cases:
- Pimlico Plumbers v Smith [2018]: Was workers only job.

• Quashie v Stringfellows Restaurants [2012] as the worker (a lap dancer) earned her income directly from customers rather than the employer, and bore some financial risks (e.g., paying fees to perform), this was inconsistent with being an employee under a contract of service. The court found that this arrangement demonstrated independence, not subordination, a hallmark of self-employment. She could not bring an unfair dismissal case therefore.

Question 11

What tests are used to determine unfair dismissal?

Answer 11

The tests used to determine an unfair dismissal are fairness, and reasonableness.

Question 12

Who must prove lawful reasoning of dismissal and what could these be?

Answer 12

Under s. 98(1) ERA 1996, burden is on employer to prove lawful reasoning for dismissal:

• conduct
• capability or qualifications
• redundancy
• statutory restriction
• some other substantial reason

Question 13

Can employees bring an unfair dismissal claim to an employment tribunal?

Answer 13

Yes, employees can bring an unfair dismissal claim to an employment tribunal.

Question 14

Describe the continuity of service element needed for unfair dismissal.

Answer 14

s. 108 ERA 1996 states must be continuously employed for a period of not less than 2 years ending with the effective date of termination.

s. 212 – counted by weeks and is not broken by weeks of sickness or injury (up to 26 weeks), temporary cessation of work, or other circumstances where he is regarded as continuing the employment.

s. 97 – EFFECTIVE DATE OF TERMINATION: Date on which notice expires or, if dismissed without notice or in lieu of notice, date on which termination takes place.

Question 15

For dismissal to be deemed either fair or unfair, s. 98(1)-(2) says…

Answer 15

Employers must establish a valid reason for dismissal:
- conduct
- capability or qualifications
- redundancy
- statutory restrictions
- some other substantial reason

Question 16

Under s. 98(3)

Answer 16

‘capability’ and ‘qualifications’ and what they refer to - look in statutes

Question 17

How does the ERA 1996 define an employee?

Answer 17

Under s. 230 ERA 1996, an employee is someone who:

Has entered into or works under a contract of employment.
A contract of employment is defined as a contract of service.

Question 18

What defines a contract of service?

Answer 18

The courts define it as:

A relationship of subordination between the worker and employer.
A relationship of personal service (the worker must perform tasks themselves).
Particular obligations and duties on the employer (e.g., providing work).

Question 19

How are decisions on employment status made?

Answer 19

Decisions are made on a case-by-case basis by the courts.

Question 20

Which cases demonstrate the courts’ approach to interpreting employment status for protection?

Answer 20

Nethermere St Neots v Gardiner: A worker in casual employment was deemed an employee due to consistent work patterns.

Autoclenz v Belcher: The court examined the actual working relationship, overriding written contract terms that labeled the workers as self-employed.

Pimlico Plumbers v Smith: Established that personal service and subordination are key factors in determining employment status.

Uber v Aslam: Found that Uber drivers were workers because Uber exercised significant control over their work.

Young and Wood v West: A sheet metal worker labeled self-employed in their contract was deemed an employee based on the relationship’s actual nature.

Question 21

Why is procedural fairness important in dismissals?

Answer 21

Even if the outcome would remain unchanged, procedural fairness ensures compliance with the law.
Case Example:

Polkey v AE Dayton Services (1987):
Facts: The employer dismissed an employee without following proper procedures, even though the dismissal would have been inevitable.
Principle: The House of Lords held that procedural fairness must still be followed, as it is critical to upholding the employee’s rights.

Question 22

What must employers ensure in dismissal investigations + case?

Answer 22

Employers must act reasonably in conducting investigations before dismissing an employee.
Case Example:

Sainsbury’s Supermarkets Ltd v Hitt (2003):
Facts: An employee was dismissed following a theft accusation based on inconclusive evidence.
Principle: The Court of Appeal emphasized that the employer’s investigation must meet the standard of reasonableness expected of a reasonable employer.

Question 23

How do courts prioritize protection over contract terms?

Answer 23

Courts look past the contents of the contract to ensure protection for individuals.
Key Principle: Where possible, the courts interpret relationships to provide worker or employee status for protection.
Cases:

Nethermere St Neots v Gardiner: Casual workers were deemed employees due to the regularity of their work.
Autoclenz v Belcher: Focused on the reality of the relationship, not the contract.
Pimlico Plumbers v Smith: Reinforced the significance of personal service and subordination.

Question 24

What cases look at the contents of the contract to establish employment status in unfair dismissal?

Answer 24

Ready Mix Concrete (1968)
O’Kelly v Trusthouse Forte [1983] Carmichael v National Power House [1991]
Windle v Ministry of Justice [2017] IWUGB v Deliveroo [2023]
PGMOL v HMRC [2024]

Question 25

What does the contractual relationship determine in employment law?

Answer 25

The contents of the contract establish the nature of the relationship between the parties. To qualify as an employee, there must be a contract of service, which includes: Mutuality of obligation: A commitment by the employer to provide work and the worker to accept it. Personal service: The individual must personally perform the work. Ongoing obligations: A continuous and structured relationship with duties arising on both sides.

Question 26

Why were the waiters in O’Kelly v Trusthouse Forte [1983] not considered employees?

Answer 26

Facts: Regular waiters at a hotel were dismissed for unionising. They were on a list of "regulars" but had no guaranteed work. Principle: The absence of mutuality of obligation (no guaranteed hours or obligation to accept work) meant they were not employees. They lacked protection under unfair dismissal laws.

Question 27

Why were tour guides in Carmichael v National Power [1991] not considered employees?

Answer 27

Facts: Tour guides worked as needed without any regular agreement for hours. Principle: No ongoing contractual relationship meant they were not employees. The lack of a structured agreement excluded them from rights like a written contract.

Question 28

What did Windle v Ministry of Justice [2017] decide about worker status?

Answer 28

Facts: Court interpreters worked as needed, without regular agreements for work. Principle: No regular agreement meant they were not considered workers or employees. This excluded them from basic protections, including discrimination protection.

Question 29

How did the substitution clause affect worker status in IWUGB v Deliveroo [2023]?

Answer 29

Facts: Deliveroo riders could use substitution clauses to send others to perform their work. Principle: The ability to delegate work meant riders were not bound by personal service, a key element for worker status. This excluded them from collective bargaining rights.

Question 30

What did PGMOL v HMRC [2024] establish about mutuality of obligation?

Answer 30

Facts: A Supreme Court case involving referees working for Professional Game Match Officials Ltd contracted to work over the football season, but may not be guaranteed work every weekend. Principle: Mutuality of obligation is not the sole determinant of a contract of service. Courts will look at the broader context of the working relationship.

Question 31

Why is mutuality of obligation critical for determining employment status? + 2 cases where MOO demonstrated

Answer 31

It establishes a commitment by the employer to provide work and by the worker to accept it. Its absence often excludes individuals from employee protections, as seen in: O’Kelly v Trusthouse Forte: No guaranteed hours meant no employee status. Carmichael v National Power: Irregular work agreements excluded employee rights.

Question 32

How do employee requirements differ from limb (b) worker status under s. 230 ERA 1996?

Answer 32

A limb (b) worker only needs a contract to perform work personally for a party that is not a client or contractor. An employee requires a contract of service, which involves: Subordination and control. A distinctive, ongoing relationship with duties and obligations.

Question 33

What complexities arise in defining employment status?

Answer 33

The substitution clause in cases like Deliveroo contradicts the idea of personal service. Cases like PGMOL demonstrate that mutuality of obligation is not the sole determinant. Courts must balance contract terms with the reality of the working relationship, as emphasized in Autoclenz v Belcher.

Question 34

What principle was established in Ready Mixed Concrete (1968)?

Answer 34

Facts: A driver labeled as an independent contractor worked under strict company rules but retained control over key aspects like vehicle choice and fuel. Decision: Labels like "independent contractor" are irrelevant; employment is determined by the relationship's reality. A contract of service requires: Control by the employer. Mutuality of obligation. Consistency with typical employment contracts. Outcome: The driver was not an employee due to significant autonomy in his work.

Question 35

What does mutuality of obligation mean in employment law?

Answer 35

Mutuality of obligation refers to the reciprocal duties between an employer and a worker: The employer is obliged to provide work. The worker is obliged to undertake the work provided.

Question 36

What principle was established in Carmichael v National Power regarding mutuality of obligation?

Answer 36

Facts: Tour guides worked on a flexible basis without regular or guaranteed hours. Decision: The lack of ongoing mutual obligations meant no employee status. The flexibility benefited both parties: Employer: Unpredictable needs. Worker: Adapted to domestic commitments. Principle: Mutuality of obligation is a minimum requirement for a contract of employment.

Question 37

How did the Supreme Court approach mutuality of obligation in PGMOL v HMRC?

Answer 37

Facts: Professional football referees contracted for a season but worked irregularly depending on matches assigned. Decision: Mutuality of obligation is not the sole determinant of employee status. Courts must consider the cumulative effect of all contractual provisions and the overall relationship. Principle: Employee status requires a rounded assessment of all factors, not just mutuality of obligation.

Question 38

What factors suggest someone is likely an employee?

Answer 38

Employer provides work and employee is obliged to accept it. Regular working pattern (except during holidays, sickness, or maternity leave). Supervisor gives instructions and monitors performance. Worker performs tasks personally (no substitution allowed). Subject to disciplinary and grievance procedures. Uses employer’s equipment and uniform. Entitled to paid holiday; tax and National Insurance (NI) deducted by the employer.

Question 39

How has mutuality of obligation evolved in court decisions?

Answer 39

Nethermere St Neots v Gardiner: Established that mutuality exists if a worker provides services in return for wages. Carmichael v National Power: Confirmed mutuality is the minimum requirement but requires regularity for employee status. PGMOL v HMRC: Highlighted that mutuality of obligation is important but not decisive; all factors of the working relationship must be considered.

Question 40

How does mutuality of obligation differ between workers and employees?

Answer 40

Workers: Mutuality exists only during specific tasks or assignments. Example: Nethermere St Neots v Gardiner: Mutuality is present if services are provided in exchange for wages. Employees: A higher standard is required, including: A regular and ongoing commitment to work. Continuity in the relationship between employer and employee. Example: Carmichael v National Power: Mutuality of obligation is the minimum requirement (irreducible minimum) for employee status.

Question 41

What must an employment tribunal determine when multiple reasons are cited for dismissal?

Answer 41

The tribunal must identify the principal reason for dismissal. The real reason must be fair under statutory grounds, such as conduct, capability, or redundancy.

Question 42

What principle was established in McCory v McGee [1983] regarding the real reason for dismissal?

Answer 42

Facts: McCory, a plumber, was dismissed because he didn’t have his tools. The employer suspected he had stolen tools but didn’t confront him about it. Decision: The tribunal found that the real reason was conduct (suspected theft), not a lack of tools. Principle: The real reason for dismissal must align with the employer’s reasonable belief at the time, even if not explicitly stated in the dismissal notice.

Question 43

What principle was established in Aslef v Brady [2006] regarding the real reason for dismissal?

Answer 43

Facts: Brady, a trade union president, was dismissed for fighting at a barbecue. The tribunal found the real reason was political differences with the general secretary. Decision: Fighting was common at the union and had not led to dismissals previously. Dismissal for political differences is not a fair reason, making this an unfair dismissal. Principle: Employers cannot mask the true reason for dismissal behind a superficially fair ground if evidence shows otherwise.

Question 44

What principle was established in Abernethy v Mott [1974] regarding redundancy and capability?

Answer 44

Facts: An engineer refused offsite work but was willing to work in the office. The employer dismissed him, citing incapability but initially offered redundancy. Decision: The tribunal found that capability, not redundancy, was the real reason for dismissal, which was fair. Principle: The tribunal must determine the true reason for dismissal, even if the employer mislabels it.

Question 45

What did Lord Cairns say about employers giving different reasons for dismissal out of kindness in Abernethy v Mott [1974]?

Answer 45

Employers may knowingly mislabel the real reason for dismissal to spare the employee’s feelings. In this case, redundancy was cited to avoid explicitly stating that the employee was not capable of performing their role.

Question 46

What are the key principles about identifying the real reason for dismissal?

Answer 46

McCory v McGee: The tribunal looks at the employer’s reasonable belief and actions to determine the true reason for dismissal. Aslef v Brady: Evidence of past treatment of similar conduct is relevant to determining whether the stated reason is genuine. Abernethy v Mott: Kindness or mislabeling the reason does not change the fair legal basis if the true reason is aligned with statutory grounds.

Question 47

What is the doctrine of the range of reasonable responses (RORR) in unfair dismissal?

Answer 47

The RORR is a test applied in unfair dismissal cases to determine whether the employer’s decision to dismiss falls within a range of responses a reasonable employer could adopt. The tribunal must consider if the dismissal decision is one a reasonable employer might have made, not whether it is what the tribunal itself would have done.

Question 48

What principle was established in Iceland v Jones [1983]?

Answer 48

Facts: Jones was dismissed for allegedly falsifying security records and claiming false overtime. Decision: The tribunal must assess whether the dismissal falls within the band of reasonable responses open to a reasonable employer. Principle: A dismissal is fair if a reasonable employer might have dismissed the employee under similar circumstances.

Question 49

How did British Leyland v Smith [1981] clarify RORR?

Answer 49

Facts: An employee was dismissed for misconduct. Decision (Lord Denning): If no reasonable employer would have dismissed the employee, the dismissal is unfair. If a reasonable employer might reasonably have dismissed, the dismissal is fair. Principle: Employers are given discretion within the range of reasonable responses.

Question 50

How did Beedell v West Ferry Printers [2001] refine the RORR test?

Answer 50

Clarified that the tribunal does not need to find that no reasonable employer would have behaved this way for the dismissal to be unfair. There is flexibility within the test to consider the context and circumstances of the dismissal.

Question 51

What is the tribunal’s role in applying the RORR test?

Answer 51

Tribunals must not substitute their own judgment for the employer’s decision. They must assess whether the employer’s decision was within the band of reasonable responses a reasonable employer could adopt.

Question 52

What principle was reinforced in Barchester Healthcare v Tayeh [2013]?

Answer 52

Facts: A care worker was dismissed for inaccurate record-keeping related to a patient’s drip feed. Decision: The Court of Appeal held it was an error of law for the tribunal to impose its own view of what should have been done. Principle: The tribunal must apply the RORR test and not substitute its own opinion for what would be reasonable in the employer’s specific business context.

Question 53

Why is the range of reasonable responses test used?

Answer 53

1. To give employers discretion to manage their business and workforce. 2. Ensures tribunals do not second-guess decisions but instead assess reasonableness in context.

Question 54

What are the key principles of the range of reasonable responses?

Answer 54

A dismissal is fair if it falls within the band of reasonable responses open to a reasonable employer. (Iceland v Jones). Employers have discretion, and tribunals must not substitute their judgment (Barchester Healthcare v Tayeh). If no reasonable employer would have dismissed, the dismissal is unfair (British Leyland v Smith).

Question 55

What principle was established in Burchell v British Home Stores [1980]?

Answer 55

Facts: Mrs. Burchell was dismissed for suspected theft, but it was later found she was not responsible. Decision: The dismissal was fair as it was based on a genuine belief in her misconduct. Principle: To justify dismissal for misconduct, the employer must show: - Belief: They genuinely believed in the misconduct. - Reasonable Grounds: There were reasonable grounds for that belief. - Investigation: A reasonable investigation was conducted.

Question 56

How did Sainsbury’s v Hitt [2002] confirm Burchell?

Answer 56

Facts: Mr. Hitt was dismissed for suspected gross misconduct (theft). The tribunal imposed their own standards of investigation, which was an error. Principle: The employer only needs to prove they had reasonable grounds to believe in misconduct after a reasonable investigation. The investigation is not to establish guilt but to justify reasonable belief.

Question 57

What principle was established in Alidair v Taylor [1977] regarding capability dismissals?

Answer 57

Facts: A pilot caused significant damage during a landing error. Decision: Dismissal was fair as the employer had a reasonable belief in the pilot’s incompetence, supported by an investigation. Principle: In high-risk industries, even a single incident of incompetence can justify dismissal if it undermines trust in the employee's capability. The employer must act reasonably in their belief and investigation.

Question 58

What principle was established in GM Gorfin v Distressed Gentlefolks Aid Association [1973]?

Answer 58

Facts: Mrs. Gorfin caused conflict among staff in a care home. The employer dismissed her to restore harmony. Principle: An SOSR dismissal is fair if: The issue (e.g., staff conflict) significantly impacts the business. The employer conducts a reasonable investigation and acts to protect the business's interests.

Question 59

What principle was established in Masini v Compass Group UK [2014] regarding third-party demands?

Answer 59

Facts: A café manager was dismissed at the request of the building owner who was dissatisfied with the service. Principle: Employers must act fairly when responding to third-party demands by: 1. Exploring and challenging the third party’s request. 2. Considering alternatives, such as redeployment. 3. Minimising injustice to the employee through fair procedures.

Question 60

What must an employer show to justify dismissal for misconduct?

Answer 60

A genuine belief in misconduct. (Burchell v British Home Stores). Reasonable grounds to sustain that belief after a sufficient investigation. (Sainsbury’s v Hitt). The dismissal falls within the range of reasonable responses open to a reasonable employer.

Question 61

When is a dismissal for lack of capability justified?

Answer 61

1. The employer has a reasonable belief in the employee's incompetence (Alidair v Taylor). 2. The belief is based on an investigation that supports their conclusion. 3. Context matters: In high-risk industries, even a single mistake may justify dismissal.

Question 62

When is a dismissal for “Some Other Substantial Reason” fair?

Answer 62

The reason must be substantial and essential to the business’s operations (e.g., restoring staff harmony or addressing third-party dissatisfaction). Employers must conduct a reasonable investigation and follow a fair procedure. GM Gorfin: Restoring harmony justified dismissal. Masini v Compass Group: Employers must challenge third-party demands and consider alternatives before dismissing.

Question 63

Why can a dismissal for a fair reason still be unfair?

Answer 63

If the procedure followed by the employer is flawed, the dismissal can be deemed unfair, even if the reason is valid. The band of reasonable responses applies to all aspects of the dismissal, including the process.

Question 64

What was established in Turner v East Midlands Trains about procedure and human rights?

Answer 64

Facts: A train conductor was dismissed for suspected ticket tampering. She argued the procedure violated her Article 8 ECHR right to private and family life. Decision: Article 8 was engaged but the band of reasonable responses test was sufficient to meet ECHR standards. Principle: The tribunal must ask: Has the employer acted as a reasonable employer might do?

Question 65

s.98(4) ERA 1996: After establishing a fair reason...

Answer 65

After establishing a fair reason, the employer must prove: 1. Their actions were reasonable in the circumstances. 2. Their decision was justified based on equity and substantial merits. The employer's size and resources are considered, with higher standards for large employers.

Question 66

What are the key procedural requirements under the ACAS Code of Practice?

Answer 66

1. Establish facts of the case. 2. Inform the employee of the issue. Allow the employee to be accompanied by a union representative or co-worker (Employment Relations Act 1999). 3. Hold a meeting to discuss allegations. 4. Decide on appropriate actions and inform the employee. 5. Offer an appeal process (Tipton v West Midlands Co-op). Failure to follow the ACAS Code can lead to a 25% uplift in compensation.

Question 67

What principle was established in Polkey v AE Dayton [1988] about procedural fairness?

Answer 67

Facts: Mr. Polkey was made redundant without consultation. Decision: Even if the outcome wouldn’t have changed, the failure to consult made the dismissal unfair. Principle: Procedural fairness is critical. A dismissal can be unfair solely due to a failure in process. The tribunal may apply a Polkey reduction to compensation if a fair procedure would have led to the same outcome.

Question 68

Why was dismissal unfair in Tipton v West Midlands Co-op [1986]?

Answer 68

Facts: Tipton, dismissed for lateness, was not allowed to appeal. Principle: A right to appeal is essential. Denying this renders a dismissal unfair.

Question 69

What are the possible remedies for unfair dismissal?

Answer 69

1. Basic Award: Based on age, length of service, and weekly pay. E.g., 1 week per year for ages 22-40; max £700 per week. 2. Compensatory Award: Covers past and future financial losses. Max: 1 year’s pay or £115,115, whichever is lower. 3. Additional Compensation (Discrimination Cases): For injury to feelings or stress (unlimited).

Question 70

What rights do employees have in disciplinary/grievance hearings?

Answer 70

Under the Employment Relations Act 1999, employees can bring: 1. A union representative or 2. A co-worker. Breach of this right can lead to two weeks’ pay compensation (Toal v GB Oils [2013]).

Question 71

Gilham v Kent [1948]

Answer 71

Reasonable grounds for dismissal must be based on a reasonable investigation (Gilham v Kent [1948]). Employers must act reasonably, even under limited resources.

Question 72

Look at question structure

Answer 72

X

Question 73

Determine employment status with judicial tests

Answer 73

Ready Mix Concrete Control Personal Service Mutuality of Obligation Economic Reality Integration

Question 74

What does Hudson v Ridge Manufacturing Co Ltd (1957) establish about workplace safety and its link to SOSR dismissals like GM Gorfin?

Answer 74

Employers must ensure safe coworkers; liability arises if dangerous behavior is unaddressed (Hudson). This aligns with GM Gorfin, where dismissal was justified to restore workplace harmony.