unfair dismissal Flashcards
s94(1) ERA
‘an employee has the right not to be unfairly dismissed by his employer’
qualification to claim
PQ step 2: s108- 2 years continuous employment
ACAS
failure to follow can affect remedies and made dismissal unfair
has there been a dismissal? PQ step 1
s95- no formal process. tangled question of law
s95 definition includes …
a. termination by employer (whether with or without notice)
b. expiration of fixed term contract without renewal
c. constructive dismissal
d. resignation and termination by mutual agreements, automatic termination
a) termination without notice Kwik Fit v Lineham
Resignations given in the heat of the moment may not count as ‘true resignations’ and in special circumstances, the employer should allow a reasonable time to pass before accepting it
Tanner v Kean
where words/actions are unambiguous prima facie, the employer is generally entitled to accept.
‘special circumstances’ may arise- C was publicly rebuked, so threw his keys, left + asked for wages the next day.
the employer must allow time for this to be revoked.
a) termination without notice London Probation Board v Kirkpatrick
an agreement between employer and employee to ‘reinstate’ employee after an original dismissal was purely contractual and could be effective in erasing any gap in continuity of employment for the purposes of unfair dismissal
b) expiration of a fixed term contract without renewal
fixed term work directive 99/70
counts as a dismissal and must be defended in the same way as others, although often reasons are obvious e.g. where the job no longer exists
c) constructive dismissal
termination by the employee
in circumstances where the employee is entitled to terminate without notice- because of the employer’s conduct/ employer repudiation (express/ implied) = constructive dismissal
s95(1)(c)
constructive dismissal
Western Excavating v Sharp
the contract test applies- the employers conduct must amount to a repudiatory (fundamental) breach of contract. acting ‘unreasonably’ is not enough
Lewis v Motorworld Garages
a series of acts by the employer can be cumulatively taken into account using an objective test
McBride v Falkirk Football Club
breach of the implied term of trust and confidence is a repudiatory breach. the duty not to act in a manner likely to undermine T +C is judged objectively
Vairea v Reed Business Information
Retraction of repudiation, such as reversing a wrongful discipline on appeal, can prevent a constructive dismissal: discipline vacated on appeal is treated as never having happened
What = breach of trust and confidence?
unreasonable change in job duties demotion humiliating tasks insults unreasonably refusing loan usually given
d) resignation and termination by mutual agreements, automatic termination
ERA S203- No contracting out of UD protection
s97
defines the effective date of termination
s98
requires that, if dismissal is shown, employer must probe a reason or principle reason for the dismissal and prove that the reason is a potentially fair one
s98(4)
‘fairness’ depends on the reasonableness of the employers decision - neutral burden of proof
disqualified categories of employee
s193, 199, 200
age (over 65)
police, national security
d) igbo v Johnson Matthey chemicals Ltd
agreements for automatic termination of employment are void under s203 ERA
Rai v Somerfield Stores Ltd
if the employer gives an ultimatum which the employee chooses to disregard, that amounts to a resignation
e) frustation
contract law concept- avoids dismissal.
the employer does not have to dismiss e.g. employee dies/ imprisoned.
the event, not addressed in the contract, renders performance impossible = contract terminates
Notcutt v Universal Equipment
the contract is deemed at an end because of an unexpected event that makes performance impossible (heart attack meant that the employee could not longer do the job)- this is not a dismissal
ratio of frustration
the employer did not hire someone who would have a heart attack. reasonable adjustments must be considered
Warner v Armfield Retail & Leisure
before frustration can be considered, the tribunal must be satisfied that any reasonable adjustments the employer was under a duty to make had been made
step 3 in PQ: effective date o termination. s97
3 month limitation period to make a claim to tribunal begins to run at end of actual notice/ date of termination
if employer does not give notice the contract terminates and the clock begins to run
notice: communication
employee must receive communication of notice
continuity and compensatory pay are calculated with statutory notice added on
Harper v Virgin Net Ltd
no right to claim compensation for loss of an opportunity to claim unfair dismissal. i.e. where failure to give notice meant the employee did not have sufficient continuous employment for UD
Wedgewood v Ministergate Hull Ltd
effective date of termination s97
special circumstances
employer must allow reasonable time for special circumstances to contradict prima facie interpretation or to allow employee to retract heated words.
step 4: the reason for dismissal
s98- employer must prove reason and that reason must come under ‘potentially fair reasons’. this reason must have also applied at the time of dismissal
the ‘reason’ for constructive dismissal
- wells v countryside estate agents
if a dismissal is constructive, the relevant reason is the reason for the act which constituted a repudiatory breach of contract by the employer:
after-discovered conduct and appeals
- West Midlands Co-operative Society v Tipton
facts discovered during the appeal can support the original reason for dismissal but cannot constitute an independent reason
tainted decisions
Royal Mail v Juhti
if the apparent decision maker relies on advice, and the advice is tainted with, say victimisation, if the decision-maker is unaware and believes the decision is free of taint, then the decision is free of taint
not constructive dismissal
Reasonable changes to job duties to avoid costs threatening company
Failure to consult worker on program which firm decides not to pursue
Assigning smaller office
Isolated insults
Suspending worker & not ‘leaning over backwards’ to avoid financial hardship. Sometimes if someone is accused that might justify firing them they might suspend the person to ensure evidence is not contaminated.
potentially fair reasons for dismissal
s98(1)-(3)
a) capability or qualifications
b) conduct
c) redundancy
d) statutory contravention (i.e continuing to employ this person would contravene a statute)
e) SOSR
W Devis & Sons Ltd v Atkins
the employer cannot rely on facts he was not aware of at the time of dismissal
s98(1)(a)
it is for the employer to show the principal reason for the dismissal
