Unfair Dismissal

Question 1

Words said in the heat of the moment should be allowed to be withdrawn - why?

Answer 1

Allowing the employer to recant statements creates good industrial relations - Martin v Yeoman Aggregates Ltd [1983]

Question 2

The employment tribunal must take care when determining whether the employer really intended to dismiss the employee

Answer 2

Tanner v Kean [1978]

Question 3

What will the employment tribunal check for unfair dismissal purposes where a fixed-term contract is not renewed?

Answer 3

Whether the decision not to renew the fixed term contract was reasonable and whether the employer had checked if there was another suitable post available for the employee

Question 4

What must the employer have done to constitute constructive dismissal?

Answer 4

Western Excavating v Sharp [1978] - there must have been a serious breach of contract. Unreasonable conduct by the employer is not enough to constitute constructive dismissal.

Question 5

Constructive dismissal can be unfair or fair and depends on what?

Answer 5

The reasonableness of the employer’s conduct

Question 6

List things that could be a constructive dismissal

Answer 6

1) Unilaterally changing the terms of the contract:
Rigby v Ferodo, Alcan Extrusions v Yates [1996]
2) Accusing employee of stealing - Robinson v Crompton Parkinson [1939]
3) Shouting at employee in front of other members of staff - Hilton v Protopapa
4) Breaching the implied term of mutual trust and confidence: Courtalds v Andrew - where the employer conducts himself in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence

Question 7

A repudiatory breach by an employer cannot be cured

Answer 7

Bournemouth University Higher Education Corporation v Buckland [2010]

Question 8

The breach by the employer does not have to be the sole cause of termination by the employee..

Answer 8

But has to be the effective cause:

Walker v Josiah Wedgewood

Question 9

Compensation for unfair dismissal can be reduced by the employment tribunal - why?

Answer 9

Due to contributory conduct by the employee

Question 10

Once dismissal has taken place it must be determined whether the dismissal was fair or unfair. What are the 5 potential fair reasons for dismissal?

Answer 10

s 98 ERA 1996:

1) Capability
2) Conduct
3) Redundancy
4) Statutory illegality
5) Some other substantial reason

Question 11

Although a dismissal may be fair for 5 potential reasons, what needs to be determined by the ET

Answer 11

It needs to be determined whether the employer acted reasonably in treating the reason as a sufficient reason for dismissal

Question 12

Which parties must prove what in relation to an unfair dismissal claim?

Answer 12

The employee needs to prove that he has been dismissed

The employer needs to prove the reason for the dismissal and that it was one of the potentially fair reasons.

Question 13

The employment tribunal can assume that the reason for dismissal was unfair if..

Answer 13

The employer cannot give prove it was for one of the fair reasons based on the evidence given

Question 14

General allegations made by the employer about an employee are normally insufficient and will not amount to one of the fair reasons for dismissal

Answer 14

Raynor v Remploy Ltd [1973] - General manager who was employed for five years was dismissed due to lack of business judgement
Held: ET regarded the companies allegations as spurios therefore the dismissal was regarded as unfair.

Question 15

Explain the two stage procedure the tribunal go through in determining whether a dismissal was fair

Answer 15

1) The means whereby the decision was reached - i.e. going through the proper procedures (bearing in mind the code of practice)
2) The actual decision taken, bearing in mind the reason for the dismissal

Question 16

What is the test for determining whether the employer acted reasonable and what must the ET not do?

Answer 16

Test: ‘Did the employer act reasonably’

The ET must not substitute its own views for that of the employer’s

Question 17

It is up to the employment tribunal to decide whether the employer acted reasonably. What case set this out with what test?

Answer 17

Iceland Frozen Foods Ltd v Jones [1983] - the range of reasonable responses test stipulates that if a reasonable employer may have taken the decision to dismiss, then the dismissal will be fair even if all employer’s might not have chosen to dismiss.

Question 18

What case challenged the reasonable responses test?

Answer 18

HSBC v Madden [2001]

Question 19

What case ultimately confirmed the range of reasonable responses test was correct?

Answer 19

Foley v Post Office [2001]

Question 20

The range of reasonable responses only applies to..

Answer 20

Facts known to the employer during the dismissal, not at the hearing

Question 21

The ET must not engage in the rehearing of facts..

Answer 21

The ET should only consider the facts known at the time of the dismissal:
London Ambulance NHS Trust v Small [2009]

Question 22

When is the reasonableness of the employee’s reason to be tested?

Answer 22

When the employment has come to an end, therefore an initial decision to dismiss that is unfair because of not following correct disciplinary proceedings may be corrected if the correct procedures are put into place:
Clark v Civil Aviation Authority [1991]

Question 23

What are automatically unfair reasons for dismissal?

What is irrelevant regarding automatic reasons for unfair dismissal?

Answer 23

• Dismissal for reasons of childbirth/pregnancy, race/sex/disability discrimination, whistle blowing etc.
• Whether the employer acted reasonably or whether the employee has the necessary continuous employment

Question 24

If an employer dismisses for reasons of capability, what must consider before dismissing the employee?
- Give a case where the employer failed to take into account these considerations

Answer 24

Employer must first consider why the employee is incompetent or under performing and consider if he can do anything about it before dismissing or consider other employment.
Davison v Kent Meters [1975] - the employment tribunal found a dismissal to be unfair as the employer had not taught the employee how to do her job

Question 25

Neglectful incompetence is a fair reason for dismissal in relation to capability. Give the case and test for this.

Answer 25

Taylor v Alidair [1978] - senior employee landed the plane badly and was dismissed. Held : dismissal fair.
Test: did the employer honestly and reasonably believe that the employee was incompetent or incapable of doing the job?

Question 26

If an employee has a long term sickness, is the employer expected to accommodate this?

Answer 26

Employer must act within range of reasonable responses but cannot be expected to accommodate an employee’s long term sickness

Question 27

Persistent absenteeism - what must employer consider

Answer 27

Is it due to a long term illness? Does the employer have the obligation to make reasonable adjustments under the Equality Act 2010?

Question 28

Lack of qualifications is a fair reason for dismissal

Answer 28

Blackman v Post Office [1974] - employee was required to carry out an aptitude test and failed after the maxium number of attempts and was dismissed.
Held: Dismissal was fair on the grounds of lack of qualifications, however there has to be a contractual requirement to have these qualifications and reasonableness is still taken into account

Question 29

Give examples of where conduct is a fair reason for dismissal

Answer 29

Abusive language + disobeying orders - Pepper v Webb
Dishonest behaviour - Sinclair v Neighbour - taking £15 from the tll.
Missing two hours from post - Ross v Aquascutum

Question 30

Give example of dismissal for some other substantial reason

Answer 30

Failing to accept a RoT clause - RS Components Ltd v Irwin [1974]

Question 31

List the three remedies for unfair dismissal and explain what they mean

Answer 31

Reinstatement - employee reinstated to old job
re-engagement 0 employee is rengaged by the employer or successor/associate in a different role
compensation - money awarded for loss suffered

Question 32

• What is the test for determining whether reinstatement or re-engagement should be used?
• When is reinstatement or re-engagement likely to be chosen?

Answer 32

• s 116 - the practicality of reinstatement or re-engagement
• Where there has been a break down of the implied term of mutual trust and confidence

Question 33

Where reinstatement or re-engagement fails or is not complied with the ET can award three types of compensation

Answer 33

Basic Award
Compensatory Award
Additional Award

Question 34

When is an employee entitled to basic award?

Answer 34

Employee is entitled to basic award as soon as the dismissal is held to be unfair

Question 35

What are reasons for reducing the basic award?

Answer 35

s 122:

• Unreasonable refusal of an offer of reinstatement or re-engagement
• Contributory Conduct

Question 36

Explain the ‘just and equitable rule’ under s 123 regarding conduct and the compensatory award

Answer 36

Under the just and equitable rule the ET must reduce the compensatory award if the employee’s conduct contributed to the dismissal - Optikinetics Ltd v Whooley [1999]

Question 37

The compensatory award and be reduce to nil if it can be shown that it would not be just and equitable to grant compenstation

Answer 37

Devis v Atkins [1977] - after the dismissal it came to light that the employee had acted dishonestly and so the compensation was reduced to nothing.
Compensatory award cannot be awarded there the employee has not suffered an injustice as a result of the dismissal.

Question 38

Compensation will not be awarded for injury to feelings

Answer 38

Norton Tool Co Ltd v Tewson [1973] - loss does not include injury to feelings or pride, only includes financial loss. Compensation will only be awarded for the manner of dismissal if it causes financial loss of earnings.

Question 39

What are the possible heads of loss?

Answer 39

Norton Tool Co Ltd v Tewson [1973]:
a) Immediate loss of wages
b) Manner of dismissal (ONLY if it caused financial loss - Dunnachie v Kingston upon Hull County Council [2005])
c) Future loss of earnings
d) Loss of protecting (i.e UD + Redundancy rights)
Plus a potential 25% increase if the employer failed to follow ACAS Code of Practice

Question 40

When are immediate loss of earnings incurred?
An employee getting a new job doesn’t automatically stop compensation - why?
What can be deducted from immediate loss of earnings?

Answer 40

• Between the date the employment was terminated and when the ET assess the loss
• Because the new job may have lower pay, be temporary or the employee may lose the job
• PILON (pay in lieu of notice)

Question 41

In determining future loss of earnings the ET must do what?

Answer 41

Speculate the future loss taking into consideration all of the circumstances

Question 42

It was originally thought that where the correct disciplinary procedure would have made no difference to the dismissal the dismissal was nonetheless fair.
What is the correct position now?

Answer 42

British Labour Pump Co Ltd v Byrne [1979] procedural irregularity in an otherwise fair dismissal was still considered to be a fair dismissal as it was shown that carrying out the procedure would have made no difference;
This was later held to be the incorrect approach:
Polkey v A E Dayton Services Ltd [1987] it was held that this rule is incorrect unless it can be shown that carrying out the correct procedures would have been utterly useless or futile.
Held: procedural correctness lies at the heart of unfair dismissal

Question 43

In order for the employer to rely on contributory conduct what must he show?

Answer 43

That the conduct made the employee culpable and is not matters which are beyond the employee’s control - Nelson v BBC

Question 44

Senior employees must expect their contributory conduct to reduce their compensatory award substantially - why?

Answer 44

Because they are subjected to a higher standard of conduct - McPhail v Gibson

Question 45

The loss has to be directly attributable to the employer’s conduct

Answer 45

Dench v Flynn & Partners

Question 46

What must the employee do in relation to his losses

Answer 46

Employee must mitigate against his losses

Question 47

List the possible adjustments that can be made to the compensatory award (capped at £83, 682)

Answer 47

Earnings the employee has made by mitigating
Polkey reduction - had the dismissal been fair if the correct procedures had been followed
Contributory conduct
PILON reduction
Increase or decrease of 25% depending on employer/employee’s failure to follow ACAS code

Question 48

What are the three categories of hearing that should be held?

Answer 48

1. Informal Interview
2. Investigatory Type Hearing
3. Disciplinary Hearing

Question 49

The disciplinary hearing must NOT happen before what?

Answer 49

A proper investigation has been conducted

Question 50

What is the purpose of a disciplinary hearing?

Answer 50

To investigate/clear up any allegations of misconduct

Question 51

What case set out what the employer must do where there is suspected misconduct

Answer 51

British Home Stores v Burchell [1980]
Facts: Employee had been dismissed for SUSPECTED dishonesty.
Held:
1) The employer must have had the genuine believe that the employee was guilty of the misconduct
2) The employer must have reasonable grounds for the belief
3) The emloyer must have carried out a reasonable investigation into the matter

Question 52

When implementing disciplinary or grievance procedures what should employer’s also comply with?

Answer 52

ACAS Code 
Contractual procedures (if not followed = breach)

Question 53

If an employer does not follow contractual disciplinary procedures what can the employee do?

Answer 53

1) Seek an injunction preventing the employer from breaching procedure
2) Seek damages at common law for the time the employee would have been employed had the correct procedure been followed
3) Employee resigning and claiming constructive dismissal

Question 54

Failure to follow contractual procedures will render that dismissal unfair, but if the dismissal would have taken place anyway..

Answer 54

The tribunal can make a Polkey reduction under

Polkey v A E Dayton Services Ltd [1987]

Question 55

At common law, how was it said that disciplinary procedures should be conducted?

Answer 55

Clark v Civil Aviation Authority [1991] :

1) Purpose of meeting should be explained
2) Those present should be identified
3) Representation should be arranged
4) Employee informed of allegations made
5) Evidence put forward in statement form or through witnesses
6) Employee argues case/call witnesses
7) Listen to arguments from both sides
8) Decision made and reduced to writing

Question 56

How long does an employee have to make an unfair dismissal claim?
What type of claim is an unfair dismissal claim

Answer 56

3 months

Statutory Claim

Question 57

In determining whether a dismissal has occurred, where ambiguous words have been used what does the tribunal ask?

Answer 57

What a reasonable man would have understood of the words in context of the industry and practices used.
What did the employer intend to say?

Question 58

What happened in Futty v D&D Brekkes Ltd?

Answer 58

Man said if you don’t like it you can fuck off did not equal dismissal