Unfair Dismissal Flashcards
Stages in UD Claim
1) Is individual an employee?
2) Does the employee meet qualifying period of continuous service?
3) Was the employee dismissed?
4) When was the effective date of termination?
5) What was the reason for the dismissal?
6) Was the dismissal fair, both substantively and procedurally?
7) Remedies.
s 94(1) ERA 1996
Employee has the right not to be unfairly dismissed. Therefore, there must be a contract of employment per s 230(1) ERA 1996.
s 108(1) ERA 1996
2 years of continuous employment are required for the employee to qualify for unfair dismissal.
Note that there are exceptions to the 2 year qualifying period under s 108(3). These are automatically unfair reasons for dismissal - e.g. dismissal for membership of a trade union under s 152 TULRCA 1992.
s 212(1) ERA 1996
Any week during which an employee’s relations with his employer are governed by a contract of employment count towards the period of qualifying service.
s 212(3)
If employee is absent from work due to sickness or injury, or temporary cessation of work etc., this still counts towards the period of continuous service.
s 95(1) ERA 1996
s 95(1) sets out three forms of ‘dismissal’:
a) termination by employer
b) expiration of a fixed-term contract
c) constructive dismissal
A fixed-term contract is one not intended to be permanent and the contract terminates upon the expiration of a period of time, or a particular condition being met.
Constructive Dismissal
Constructive dismissal = employee terminates the contract in response to breach of contract by the employer. Note Geys v Societe Generale has confirmed the elective theory applies to breach of contract - so contract only terminates if employee elects to end it.
Western Excavating Ltd v Sharp
CA held that an employee is only entitled to resign in response to employer’s conduct if the employer has committed a fundamental breach of contract.
S was denied financial help from the company’s welfare officer, so resigned in response and claimed constructive dismissal = not a fundamental breach of contract.
Chesham Shipping v Rowe
Tribunal must ensure that what has really taken place is dismissal of the employee, rather than just words of abuse by the employer.
Notcutt v Universal Equipment Co
Frustration (where the contract becomes impossible to perform due to an intervening event) does not constitute dismissal for the purposes of UD.
s 97(1) ERA 1996
s 97(1) defines the effective date of termination. EDT depends on how the termination was carried out by employer:
(a) by notice - EDT = date the notice expires;
(b) without notice - EDT = date the termination takes effect;
(c) limited-term contract - EDT = when the contract is terminated by the limiting event without being renewed under the same contract.
Gisada Cyf v Barrett
EDT cannot be earlier than the date when the employee knows (or at least had a reasonable chance to discover) that they have been dismissed.
Employee was away from home and therefore was unaware that she was issued a letter of summary dismissal for alleged misconduct.
Dedman v British Building & Engineering Appliances Ltd
For summary dismissal, EDT is the date that the summary dismissal was made, regardless of whether it was justified.
Kirklees MBC v Radecki
Summary dismissal may be effected implicitly by employer conduct in fundamental breach of contract, e.g. refusal to pay wages.
s 111(2) ERA 1996
Three month limitation period from the EDT in which C must bring their unfair dismissal claim.
This is one reason why the EDT is so important - must be within 3 months of the EDT. Second reason = 2 year period of qualifying service ends upon the EDT.
s 98(1) ERA 1996
For UD, it is for the employer to show:
a) the reason for the dismissal; AND
b) that the reason falls within s 98(2) OR there is some other substantial reason for dismissal which justifies dismissal from the particular post the employee held.
s 98(2) ERA 1996
Valid reasons for dismissal:
(a) capability/qualifications of employee;
(b) conduct of employee;
(c) employee was made redundant.
Note that an employer may show that there was SOSR outside of these three reasons for the dismissal. However, this is still subject to the same fairness test under s 98(4).
W Devis & Sons v Atkins
Reason for dismissal must be one that the employer relied upon at the time of dismissal, and CANNOT be based on facts discovered after the dismissal.
s 98(4) ERA 1996
Fairness test for dismissal. Fairness depends on whether the employer acted reasonably in treating it as a sufficient reason for dismissal, and shall be determined in accordance with equity and the substantial merits of the case.
Iceland Frozen Foods v Jones
Browne-Wilkinson J said that the test for substantive fairness under s 98(4) is whether the employer’s response fell within the band of reasonable responses (BoRR). Tribunal should not substitute its own judgement as to what the employer should have done - instead, if the dismissal fell within the wide margin of BoRR, dismissal = fair.
British Leyland v Swift
Employee dismissed after 18 years’ outstanding service because employer found a tax disk that belonged to them in his car. CA overruled ET and held that ET had substituted its own views as to what the appropriate response was, rather than applying the correct test of whether it fell within the BoRR.
Wrongfully using the employer’s tax disk in his car did fall within the BoRR. Irrelevant that the ET thought that dismissal was disproportionate.
Bowater v Northwest London Hospitals Trust
C was dismissed for making a joke about sex after having to restrain a patient by sitting on him. CA held that dismissal for the comment was unfair since it was outside of the BoRR - C was trying to extricate herself from an embarrassing situation.
HSBC v Madden
CA robustly affirmed BoRR as current law. Mummery LJ said Parliament had many opportunities to reformulate the test but had not done so. CA overturned the EAT’s decision because although the bank could have made a more thorough investigation, it had made some reasonable enquiries and so dismissal fell within the BoRR. EAT substituted its own judgement for how the employer should have responded = erred in law, since EAT applied wrong test.
BHS v Burchell
Procedural fairness - for allegations of misconduct, the employer must carry out as much investigation as was reasonable in the circumstances.
