Unfair Dismissal Flashcards
Who does unfair dismissal apply to?
S.94(1) ERA 1996 provides that an employee has the right not to be unfairly dismissed by his employer.
S320 (1) Employment Rights Act 1996 defines an employee as an individual who works under a contract of service. An Employee will be entitled to more employment rights than workers or self-employed people and will owe more obligations towards their employer.
Unfair dismissal protection does not arise until employees have been in employment for at least two years.
Employees before 6 April 2002, continuous service is 1 year.
If the employee has been dismissed for an automatically unfair reason, in most cases no continuous service is required. The qualifying period for continuous service is 2 years.
The following requirements must be satisfied before a claimant can bring a claim for unfair dismissal:
- The claimant must be an employee of the employer (S.94(1) ERA 1996);
- The claimant must have the required amount of continuous service at the effective date of termination (S.108 ERA 1996)
- The claimant must have been dismissed (S.94(1) ERA 1996)
What is continuous employment?
Continuous employment refers to the uninterrupted period during which an employee has worked for one employer.
Continuous employment can also apply where an employee undertook work for a previous employer, for example, where the employee transfers from one employer to another.
Having completed a certain qualifying period of service, employees will then become entitled to enhanced employment rights, including: The right to claim unfair dismissal.
Continuous employment can be regarded as having two components:
1) Continuity of employment: that is, the existence of an employment relationship based on a contract of employment. Illegal contracts (e.g those that evade tax) are not contracts and do not count.
2) Total periods of employment: The written statement given under S1 ERA 1996 provides that any previous period of employment which counts towards the period of employment must be stated.
There are also certain statutory exceptions where short breaks in normal employment can still be counted towards continuous employment.
What are they?
Absence from work due to any of the following events will not usually break an employee’s continuity of service:
- Periods of sickness or annual leave
- Maternity, paternity, parental or adoption leave
- When a business is transferred from one employer to another under the Transfer of Undertakings
- (Protection of Employment) Regulations 2006
- When a corporate body gets taken over by another because of a legal change
- When an employee is reinstated following dismissal
- When an employee is dismissed on the grounds of ill health due to sickness or injury but they are reemployed within a 26-week period
Effective date of termination?
Identifying the correct effective date of termination is important, particularly when considering a claim for unfair dismissal.
The effective date of termination will be one of these options:
- If either the employer or employee give notice to terminate the employment contract, the date on which the notice period expires.
- If the employee is summarily dismissed without notice, the date on which that termination takes effect i.e. the date the dismissal is communicated to the former employee
- If the employee is employed under a fixed-term contract, and his or her employment terminates upon expiry of that term, the date on which the termination takes effect.
- Where an employee under notice gives counternotice to terminate the contract earlier, the EDT is the date of expiry of the counternotice. (CASE Thompson v GEC Avionics Ltd).
S97 (4) ERA 1996 states that the later date is the effective date of termination.
S97 (5) ERA 1996 states that where the employee was dismissed without notice where they were entitled to notice, the stat minimum notice is added on. This would not apply if the employee were guilty of misconduct.
Dismissal is defined by s95(1) ERA 1996.
Dismissal is defined by s95(1) ERA 1996. If there is any doubt, the burden of proof is on the claimant to show that dismissal has occurred. The claimant shall be treated as dismissed only if one of the following applies:
- The employer terminates the contract, with, or without notice.
- A fixed-term or limited-term contract expires; or
- There is constructive dismissal.
If notice is given, it cannot be unilaterally withdrawn.
Constructive Dismissal
S95 ERA 1996.C onstructive dismissal is where the employee terminates the contract in circumstances entitling them to terminate it without notice by reason of the employer’s conduct.
Dismissal occurs by way of use of expressed words, however even this may sometimes be a problem, especially in heat of the moment.
CASE: Futty v Brekkes Employer told employee “If you do not like the job, fuck off”. The claimant found a new job as he thought he had been dismissed. The Court decided that the language had been interpreted as “get on with the job”.
S95 ERA 1996.Constructive dismissal is where the employee terminates the contract in circumstances entitling them to terminate it without notice by reason of the employer’s conduct.
Employees who ordinarily work outside Britain can claim unfair dismissal.
Employees who ordinarily work outside Britain can claim unfair dismissal.
CASE: Serco Ltd v Lawson; Botham v Ministry of Defence extended the scope of UK unfair dismissal protection to staff working abroad.
The test is whether an employee was geographically entitled to bring an unfair dismissal claim to the ET was whether they were employed in GB. If not, the ET would have no jurisdiction to hear the case.
Automatically unfair reason and potentially unfair reason
If there is an automatically unfair reason for dismissal, the employee will have been unfairly dismissed.
If there is a potentially unfair reason for dismissal, then the employee may or may not have been unfairly dismissed
Potentially unfair dismissal
If the reason is a potentially fair reasons for dismissal, the ET must consider whether in all the circumstances, including the size and resources of the employer, the employer acted reasonably in treating these circumstances as sufficient reason for dismissal. S98 (4) ERA 1996
Automatically unfair dismissal
- Trade union membership or activity.
- Protected industrial action.
- Jury service.
- Pregnancy, birth, maternity, paternity, adoption, parental leave, or shared parental leave or time off to care for dependents, collectively termed “family reasons”.
- Health and safety.
- Enforcement of the employees’ rights under the WTR 1998
- The employee made a protected disclosure (whistle blowing).
- Assertion of statutory rights.
- Enforcement of rights under NMWA 1996 or the Tax Credits Act 2002.
- Asserting or attempting to exercise rights in relation to apply for flexible working.
- In relation to the right to apply for study and training.
- For refusing to accept an offer to become an employee shareholder.
Automatically FAIR dismissal
In very few circumstances it is considered automatically fair to dismiss an employee. These include:
* An employee is dismissed for taking part in unofficial industrial action.
* The dismissal in necessary to protect national security.
There are certain circumstances in which a dismissal may be classed as automatically unfair, regardless of the employee’s length of service. An automatically unfair dismissal is a dismissal that is so fundamentally unfair that an employee is not required to prove two years’ continuous service.
Where an employee is able prove one of the reasons prohibited by law, there is also no need for them to show that their employer acted unreasonably or failed to follow a fair procedure. There is no reason to satisfy the test of reasonableness.
S98 ERA 1996 provides a list of potentially fair reasons for dismissal.
Procedure to follow following discipline
The ACAS Code of Practice on Disciplinary and Grievance Procedures (the Code) provides that employers should ensure that, except for gross misconduct, no employee is dismissed for a first breach of discipline.
The Code says that employers should ensure the employees know and understand the rules and the consequences if they are broken.
Repetition of minor offences may justify dismissal but much will depend on the reasonableness of the employer.
The test is based on whether the employee has breached a key contractual term (Laws b London Chronicle (Indicator Newspapers) Ltd.
Refusal to obey an order, and the consequences, depend on the terms of the original contract. An employee is entitled to refuse to obey an unreasonable order or an unlawful one.
Sometimes criminal conduct justifies dismissal, as it decreases the employer’s confidence in the integrity and suitability of the employee.
Assaults on fellow employees may justify dismissal, although care must be taken to investigate and apply retribution fairly.
Reasonable procedure to follow by Employer
Reasonableness of the employer has two aspects; there must be both substantive and procedural fairness (S98(4) ERA 1996).
Substantive fairness - The ET must take the part of the employer and ask if, as the employer, the action was within the range of reasonable responses the employer could make, that is, not whether the ET thinks that it would have done what the employer did. This test was developed in Iceland Frozen Foods v Jones.
Guidance as to procedures with regard to discipline and dismissal are set out in the Code. Failure to follow the code can lead to the ET increasing or decreasing the amount of compensation ordered by up to 25%.
Acting reasonably in forming a view of the facts: The employer must act reasonably in that it must have reasonable grounds for drawing a particular factual conclusion. It must make a reasonably diligent investigation of the facts.
Ferodo v Barnes, the EAT reversed the decision stating that the ET had asked the wrong question. It should not have asked ‘are we satisfied that the employee committed the offence?’ but whether the employer had reasonable grounds for believing that he did. If the employer did carry out a reasonable enquiry, it must be established that the evidence it disclosed was sufficient to justify the reasonable employer dismissing the employee.
Adopting a reasonable procedure - When determining whether an employer has adopted a reasonable procedure in dismissing an employee, ET’s will have to take account of the Code.
S10 ERA 1999 provides that a person has a right to be accompanied by a fellow worker or TU official at a disciplinary hearing provided, in the latter case, that the grievance is non-trivial.
S37 Employment Relations Act 2004, the employer must allow the companion to address the hearing to put the worker’s case, to sum up the case and respond on the worker’s behalf to any view expressed at the hearing.
S12 ERA 1999 was also amended to make it clear that where a worker attends a hearing as the companion of another they are protected against detriment and dismissal.
S207A Trade Union and Labour Relations (Consolidation) Act 1992 provides that an ET may increase or decrease any award make to an employee by the ER by up to 25% if:
1. the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies;
2. employer or employee has failed to comply with that code; and
3. the failure was unreasonable.
Whether it is necessary to give a warning will depend very much on the circumstances of the individual case.
A fair procedure should also give the employee a fair hearing; there should be a disciplinary procedure providing for this in cases of misconduct. It may be possible for an employer to justify this omission, however.
It is important that the role of HR is limited to providing advice on law and procedural matters, Ramphal v Department of Transport.
The Employee has no right under common law to be told why they have been dismissed, but S92 ERA 1996 provides that if an employee is given notice, or dismissed without notice, provided they have been in continuous service for 2 years, they may request written reasons for dismissal.
The Employee has no right under common law to be told why they have been dismissed, but S92 ERA 1996 provides that if an employee is given notice, or dismissed without notice, provided they have been in continuous service for 2 years, they may request written reasons for dismissal.
The employer must, if reasonably practicable, reply with true and accurate reasons within 14 days.
The Employee can use this reply as evidence at the ET.
If no reason is supplied, or the one given is untrue or inadequate, the employee may apply to the ET within 3 months and the employer (if found liable) must pay two weeks’ pay by way of penalty.
There must have been a written request for the dismissal for S92 to apply. The dismissal cannot be challenged otherwise. Banks V Lavin.
An Employer is required to show to an ET the reasons, or if more than one, the principle reason for the dismissal. S98 (1) ERA 1998
The Employer must show the reason given is the real reason for dismissal. If no investigation has been made into the alleged reason, there will be doubt to its genuineness. Facts include genuinely held beliefs, even if they are wrong.
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Procedure for bringing a claim
Before being able to issue a tribunal claim, a claim must be lodged with ACAS under their mandatory early conciliation scheme within the above time period (3 months less one day from the termination of your employment or other event giving rise to your claim).
This will then ‘stop the clock’ on the usual Tribunal time limit until the day that you receive a certificate from ACAS confirming that Conciliation has been completed.
The clock starts running again once the Early Conciliation Certificate has been received, but the time you then must issue a claim will then be limited.
If the claim has not been lodged with ACAS within the period of 3 months less one day from the date of termination of your employment, the clock will not be stopped, and you will remain out of time to bring your claim.
Most employment claims should be brought within a three-month time limit. If it is not ‘reasonably practicable’ for an employee to present his claim within the three-month time limit, an employment tribunal has the discretion to extend the time limit.
S111(2) ERA 1996 – The only exception to time limit is where the tribunal considers that it was not reasonably practicable for the complaint to be presented within the time limit.
S111(3) ERA 1006 – it is possible to apply early, during the notice period.
CASE: Churchill v Yeates - If the employee does not learn of some material fact until more than three months after the dismissal, this may be ground for extending the time limit if the fact is fundamental.
The ACAS early conciliation process provides a potential one-month extension of time following the conclusion of early conciliation. However, this only applies if ACAS were contacted within the initial three-month time limit.
