Unfair Dismissal

Question 1

How to bring a claim

Answer 1

1. C must now contact ACAS and obtain a certificate before she can bring a claim - see s.18A ETA. Claim rejected if C doesn’t - see rule 12 of ET rules
2. Limitation periods are short - generally three months from the date of dismissal (subject to discounting period of conciliation) - see s.111 ERA.

Question 2

“Five stages of unfair dismissal PQ

“

Answer 2

1. Qualify for right? EMPLOYEE + CE (2 YEARS)
2. Is there a ‘dismissal’?
3. Fair reason or ‘automatically unfair’ reason? [RORR]
4. Reasonableness:
   - Substantive decision
   - Procedure
5. Remedies

Question 3

3 ways someone can be dismissed (s95)”

Answer 3

“Termination by (1) employer, (2) constructive dismissal, (3) expiry of fixed-term contract

1. Termination by employer -Bad conduct
   - Words not the only way (Westwell v Crompton)
2. Constructive dismissal (Kuar v Leeds – ‘last straw’).
   - i) Fundamental breach by employer – typically breach of trust and confidence (Mahmud v BCCI)
   - ii) Employee accepts breach by resigning
   - iii) Breach must have caused resignation

A dismissal can arise even if the employment relationship continues (Alcan Extrusions v Yates)”

Question 4

Requirements for a constructive dismisal?

Answer 4

” Constructive dismissal (Kuar v Leeds).

i) Fundamental breach by employer – typically breach of trust and confidence
ii) Employee accepts breach by resigning (not affirmation)
iii) Breach must have caused resignation (Sharp VS Khan cases)”

Question 5

If theres a long period of notice, and your employees resign via long notice - have they lost the right to a constructive dismissal claim? (What about a wrongful one?)

Answer 5

“Brown v Neon Management (2018)

• they were all held to have affirmed their contracts by resigning on long notice periods and lost the right to bring a claim of wrongful dismissal.”

Question 6

Affirmation of contract by an employee following employer’s breaches does not ‘wipe the slate clean’ if there is a future breach

Answer 6

“Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA

But also can find: Court of Appeal found that there had been no ‘last straw’ as the employer’s disciplinary process was properly conducted, and there had been no repudiatory breach or constructive dismissal.”

Question 7

What can an employee do when a victim of a repudiatory breach?

Answer 7

“where an employee is the victim of a repudiatory breach, it is open to them to ‘affirm’ their contract of employment. This means they can treat it as continuing, despite the breach, rather than resigning and claiming constructive dismissal.

Question 8

Can you constructively resign from something you were unaware you had a right to?

Answer 8

Kamal Khan (2018)
(National minimum wage)
○ COA: Lack of awareness of legal rights should not mean that she could not nonetheless have resigned in response to a breach of contract.
○ THIS IS IN CONFLICT WITH WESTERN V SHARP (need to resign in response to a breach).”

Question 9

Does being told to “F*** off” by your boss constitute constructive dismissal?

Answer 9

“Futty v D and D Brekkes Ltd [1974]

Yes it does”

Question 10

What are the potentially fair reasons for dismissal? (4)

Answer 10

“Employer must show reason for dismissal – s.98(1)(2)

Abernethy v Mott Hay [1979] “set of facts known to employer, or set of beliefs held by him, which cause him to dismiss the employee”. Subjective test.

4. “some other substantial reason” (SOSR) -> Iceland

reorganisations or difficult personality (Perkin v St George’s)

Question 11

Expectations on employers before dismissing in claims

Answer 11

Polkey

Capability

1. taken steps to try and improve the situation
2. made the employee aware + reasonable time to improve
3. It is rarely fair to dismiss an employee on the basis of one act of incompetence unless of course the consequences are so serious

Misconuct: investigating + hearing
redundancy: warn & consult, steps to minimise

Question 12

Is the employers response reasonable?

Answer 12

“Range of reasonable respondes – s.98(4)

Iceland Frozen Food v Jones [1983] ICR 17
TEST: Where no reasonable employer would have dismissed

Devis v Atkins: Based on the facts known to the employer at the time of the decision to dismiss

Courts more comfortable with intervening w procedure. (than in substantive)

Question 13

Was conduct dismissal fair?

Answer 13

British Home Stores v Burchell [1980]

i) Fact of belief in misconduct - subjective [probably strictly more relevant to s.98(1)]
ii) Reasonable grounds for belief
iii) Carried out as much investigation as was reasonable in the circumstances of the case.

• > supporting Burchell: London Ambulance v Small (2009)
• focus on whether employer had reasonable grounds for belief after reasonable investigation, not on what in fact happened. (Mummery: ‘[i]t is all too easy, even for an experienced ET, to slip into the substitution mindset.)

What should employers take into account with regards to gross misconduct?

1. the extent to which standards have been breached
2. the employee’s general record, position, length of service
3. any special circumstances

NOTE: Reilly v Sandwell Metropolitan Borough Council (2018)
- 2 judges suggested Burchell test shouldn’t be applied to all cases (like this one). Said although good at determining if misconduct deserving of dismissal
Not good at: determining matter in accordance to equity of case.”

Question 14

New judicial questioning on the effectiveness of Burchell

Answer 14

“Reilly v Sandwell Metropolitan Borough Council (2018) SC

• Held: can dismiss bc she was working in school and didn’t tell them of her close friendship w convicted peadophile
• BUT more importantly, 2 judges suggested Burchell test shouldn’t be applied to all cases (like this one). Said although good at determining if misconduct deserving of dismissal. Not good at: determining matter in accordance to equity of case.
• hint in Lord Wilson’s remarks that he is not entirely comfortable with the ‘band of reasonable responses’ test “

Question 15

” Re: process leading to that determination has been conducted properly.

test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of reasonable responses’ of a reasonable employer to the situation.

Answer 15

“Foley v Post Office [2000]

The Employment Tribunal has to ask itself:

(i) did the employer genuinely believe that the employee was guilty of the misconduct alleged,
(ii) did the employer have reasonable ground for that belief, reached after a reasonable investigation and
(iii) was the sanction of dismissal a reasonable sanction in the light of that misconduct?

Question 16

Parliament would need to legislate in order to change the approach required of ETs has perhaps contributed to the lack of any subsequent meaningful legal challenge to the RRT.

Answer 16

“HSBC v Madden [2000]

Madden However, it was commented in this case that there was nothing to stop the range of reasonable responses test becoming a test of perversity, which could be too pro-employer, and the EAT commented that this point needed to be resolved by the Court of Appeal.”

Question 17

Range of Reasonable Responses: Procedural (REMEDIES)

Answer 17

“Reasonableness judged at time of dismissal, not with hindsight

Polkey

• Not relevant to point at facts that suggest procedure would have made no difference.
• Why? Procedural protections have own worth

ACAS Code of Practice is relevant to misconduct dismissals – see s.207-207A TULRCA

Failure to comply with employer’s internal policies – Westminster v Cabaj

More serious allegations should be investigated more thoroughly - A v B

RORR test includes

i. whether the procedures adopted by the employer were adequate: Whitbread plc v Hall [2001]
ii. whether the pre-dismissal investigation was fair and appropriate: Sainsbury’s Supermarkets v Hitt [2003] “

Question 18

Failure to comply with employer’s internal policies

Answer 18

Westminster v Cabaj

Question 19

Range of Reasonable Responses: Substantive

Answer 19

Newbound v Thames [2015]

band of reasonable responses ‘is not infinitely wide’; not simply ‘a matter of procedural box-ticking’. In addition, employer is expected to treat truly comparable cases in the same way

Court of Appeal clarified the proper application of the RRT in two ways.

1. specific health and safety context of this case.
   - employment judge was ‘plainly’ entitled to attach significance to the lack of training the employee received.
2. the relevance of the claimant employee’s length of service.
   - ‘he should have known better’ was fair game for the judge to consider

• employment judge ‘fell into error by assessing the fairness of the dismissal on his own view of the facts and their significance rather than considering whether dismissal was within the range of reasonable responses of a reasonable employer in the circumstances’.

Question 20

All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal appeal, even post-termination, is relevant.

Answer 20

“West Midlands Co-op v Tipton

• failure to entertain an appeal can make a dismissal unfair, esp if part of procedure
• Depending on the nature of the appeal, an appeal stage can ‘cure’ any unfairness at an earlier stage
• > D’Silva v Manchester Metropolitan University (2017)”

Question 21

Range of Reasonable Responses: Substantive vs procedural

Answer 21

Strictly the range of reasonable responses test applies as much to the procedure adopted as it does to the substantive decision to dismiss: Sainsburys v Hitt [2003]

In practice, however, the courts and ETs tend to give closer scrutiny to procedural fairness, and expect compliance with established minimum standards
eg: Polkey [1988].

The rationale is presumably that no reasonable employer would dismiss someone for e.g. misconduct without a proper investigation, hearing and an appeal (save in very exceptional circumstances) + Burchell “

Question 22

“Duty to investigate properly - what would be ‘improper’

What about more serious allegations?”

Answer 22

“Miller v William Hill Organisations Limited [2013] -
employer chose to watch only the fragments of CCTV footage that supported their preconceived idea of events. Had they watched the whole footage, they would have seen evidence supportive of the employee’s innocence

A v B - More serious allegations should be investigated more thoroughly”

Question 23

Remedies for unfair dismissal

Answer 23

“○ S119 (basic award) + s123 (compensatory award) – Polkey deductions
○ No pecuniary loss recoverable [Norton Tool Ltd v Tewson]
§ Crucial in ECtHR [Edwards v UK]
Art 13 EECHR (Just satisfaction for infringement) not utilized.”

Question 24

Does breaking the ACAS code make an employer liable under employment law?

Answer 24

“Failing to follow the Code does not necessarily make a person or organisation liable to proceedings, but employment tribunals will take the Code into account when considering cases. Tribunals have the power to adjust awards by up to 25 per cent for unreasonable failure to comply with the Code.

207-207A TULRCA.

• theres also some cases where shows ACAS code doesn’t mean shit right now [Mbubaegbu]”

Question 25

New things on the scene!

Answer 25

“Increases to unfair dismissal compensation limits (2018)

GDPR information rights applying to employees re: their data -> more obligations for employers (possibly stricter Barbelescu)”