W3 Flashcards
Authority for Unfair Dismissal
s94(1) Employment Rights Act 1996
Eligibility for Unfair Dismissal
1) Claimant must be an employee
2) Employee must not fall within excluded class
3) Employee must have two years’ continuous employment (minimim)
4) There must have been a dismissal (actual or constructive)
If employment was briefly interrupted, how does the court determine if the employment was continuous?
Rebuttable presumption in favour of employee that employment was continuous
Does TUPE break continuity of employment?
No
When does continuous employment start and end?
Starts on date employment began; ends on effective date of termination
Pacitti Jones v O’Brien
Facts: Employee started on 8 April and notice period expired 7 April. Question was whether it satisfied continuous employment.
Significance: court ruled the first and last days of employment count, so C did satisfy.
Examples of exceptions to two year continuous employment requirement
As set out in 108(3):
Most automatically unfair dismissals
Medical suspension
Member of reserved forces
Dismissal for political views
s97(2) Employment Rights Act 1996 (paraphrased)
Where an employee was dismissed with less notice than entitled to under statutory minimum, then EDT is extended by the statutory minimum to achieve continuous employment, calculate basic award, get written statement of reasons, etc
Only applies if entitled to statutory notice - n/a for FTCs, summarily dismissed
If an employer gives the employee three months’ notice, and the employee resigns in that time with 1 months’ notice, thereby bringing the date forward, is it a dismissal or resignation?
A dismissal (s95(2) ERA 1996)
If an employee gives the employer three months’ notice, and the employee is summarily dismissed in that time, thereby bringing the date forward, is it a dismissal or resignation?
Dismissal
Auth: Harris & Russel v Slingsby)
Harris & Russell v Slingsby
Facts: Employee gave 1 month’s notice, 2 days later was summarily dismissed for seeking work with a competitor. Held that it was a dismissal, and was unfair, as seeking work with a competitor does not justify dismissal in the absence of any evidence that the employee was planning to misuse confidential information. However, employee had been paid through to end of 1 month notice period, so suffered no loss.
Significance: Dismissal vs resignation/confidential information
If an employee is asked to choose between resignation and dismissal, and they choose to resign, can they claim UFD?
Yes - still a dismissal, unless settlement terms agreed without duress.
Auth: East Sussex County Council v Walker/ Sheffield v Oxford Controls
East Sussex County Council v Walker
Facts: Employee was told that her contract would be terminated and invited her to resign, which she did. Tribunal found she was dismissed by reason of redundancy and owed a redundancy payment.
Significance: “Invited to resign” is a dismissal.
Sheffield v Oxford Controls
Facts: Director was threatened with dismissal if he didn’t resign. Negotiations over severance payment followed, agreement was drawn up and initialled. Dismissal or resignation?
Significance: EAT held that it was not a dismissal, since satisfactory terms of resignation had emerged, so threat of dismissal was no longer the “operative factor” in the decision.
Is an expiry (without renewal) of a fixed term contract a dismissal?
Yes (s95(1)(b) Employment Rights Act 1996)
Time limit to bring a UFD claim?
Within 3 months of EDT
Auth: s111(2) ERA 1996
Exclusions to right for bringing a UFD claim?
Already settled
Estopped as already brought and disposed of on same facts/issues
Out of time
Diplomatic immunity
Frustration - e.g. prison sentence
Vanished dismissal - i.e. re-instated
What are the five fair reasons for dismissal?
Capability/qualifications
Conduct of employee
Redundancy
Illegality
Some other substantial reason
s98(2) ERA 1996 (paraphrased)
Sets out 4 of the fair reasons for dismissal
s98(1)(b) ERA 1996
Sets out “some other substantial reason” as a fair reason for dismissal
What must the employer establish to show a fair reason for dismissal?
That the only or primary reason for dismissal fell into one of the 5 permitted reasons
Based on set of facts known or beliefs held by employer
What is included in the capability/qualification fair reason for dismissal?
Relates to ability of the employee to perform the work they were employed to do
Includes poor performance and ill health
What is the risk to an employer for claiming capability - ill health as a fair reason for dismissal?
If the ill-health relates to disability under the Equality Act 2010, then could give rise to a disability claim
Okedina v Chikale
Facts: Employee brought to UK to work as a domestic worker, with employer arranging visa. Visa expired, employer applied for an extension on the false basis that the employee was a family member, was rejected. Employee was summarily dismissed but was not told that her visa hadn’t been extended. Tried to bring a claim against employer who argued illegality made it a fair dismissal.
Significance: Found in favour of employee. Contract was lawful when made, became unlawful, but employee had not knowingly participated in illegal performance.
What is the employer required to show for some other substantial reason dismissal?
Must establish the reason was of a kind that could justify a dismissal of an employee in the job in question
Don’t need to establish that it was actually justified in the circumstances - just could be
Fair procedure and reasonable response tests still apply
Kuzel v Roche
Facts: E’ee alleged automatic unfair dismissal for making protected disclosures. E’er asserted it was SOSR dismissal regarding relationships with line manager and a senior colleague. Tribunal found actual dismissal reason to be neither: she was dismissed due to her line manager’s loss of temper, and proper procedure was not followed, so unfair (but damages cap applied). At appeal, employee argued that burden of proof was incorrectly applied - if tribunal found the employer’s reason for dismissal was untrue, should have substituted her reason for dismissal.
Significance: Burden of proof on employer to show reason for dismissal was fair. E’ee can challenge e’er’s evidence and submit alternative evidence, but e’ee doesn’t carry a burden of proof. Tribunal then considers evidence as a whole, and can find it’s either party’s reason or neither.
ASLEF v Brady
Facts: Union dismissed its general secretary following a fight with the union president at a social event. Reason given was misconduct, but tribunal found the real reason was political in nature. EAT said a potentially fair reason could be a pretext for other reasons, and in that case, tribunal is entitled to find that the statutory reason submitted by employer was not the real reason.
Significance: Employer carries burden of proof both that the reason was one of the fair reasons, and that it was the real reason for the dismissal. The fact that an employer welcomes the opportunity to dismiss an employee for a good reason does not make the dismissal unfair. However, this does not mean that, whenever there is misconduct that could justify the dismissal, a tribunal is bound to find that this is the real reason for the dismissal. Once the employee has submitted evidence that the dismissal was caused by “pique or antagonism”, rather than a statutory reason, it is for the employer to rebut this by showing that the principal reason was for a statutory reason
Who carries the burden of proof that a dismissal was fair?
Employer
Who carries the burden of proof for eligibility for UFD?
Employee
How does the court evaluate the employer’s assertions that the dismissal was fair?
First, determine factual reason the employer made the dismissal
Then, see if it fits under one of the 5 fair reasons
Royal Mail v Jhuti
Facts: Automatic unfair dismissal for whistleblowing. Manager had decided to dismiss employee for making protected disclosures, but hid the reason behind allegations of poor performance which were adopted in good faith by the decision-maker. Supreme Court said real reason for dismissal was the protected disclosures, even though the firing manager was unaware of the disclosures.
Significance: First look at the real reason for the dismissal, then see if it fits under fair reasons. Real reason is evaluated from POV of the decision maker but also other influences.
Abernathy v Mott
Facts: Civil engineer, working at head office. Ran out of projects done from head office, was offered contract requiring site work, reference made to the fact that he wasn’t progressing within head office so a move would be to his benefit. E’ee refused and was dismissed. Was offered a redundancy payment but refused and claimed unfair dismissal. A Tribunal found he had been dismissed on capability grounds - for being inflexible/incapable of doing other roles in the business. Dismissal was fair.
Significance: Incorrect label given by the employer at the time of dismissal does not preclude them from relying on another reason at tribunal. But principal reason should be known to the employee before he is dismissed/at dismissal.
How will an employee know the official reason for their dismissal?
If employee is pregnant/on maternity leave while dismissed, automatically must be provided with written notice
Other employees with continuous employment have the right to request written reasons. Must be provided in 14 days.
Auth: s92 ERA 1996
Is a written reason for dismissal admissable as evidence at tribunal?
Yes
What happens if an employer fails to provide written reasons or gives inadequate/untrue reasons?
If unreasonable:
Employee can bring a complaint within 3 months of EDT
Employee is entitled to 2 weeks’ gross pay (uncapped) in addition to any other ET claim
Not a standalone claim
Auth: s93 ERA 1996
Are dismissals ever automatically unfair?
Yes
Normally related to protections such as pregnancy/maternity leave, assertion of a statutory right, union membership, whistleblowing
Do automatic UFD claims require two years continuous employment?
Mostly no
What is the minimum continuous employment requirement for most automatic UFD claims?
None - some can arise before first day of employment, if the start date has already been arranged
s98(4) ERA 1996
The determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.
Iceland Frozen Foods v Jones
Facts: Security guard was dismissed after failing to operate the security system and participating in an attempt to deceive e’er into making extra overtime payments. Question was whether it was sufficiently serious to warrant dismissal.
Significance: Test to apply is whether the e’er’s decision is within the band of reasonable responses to the e’ee’s conduct which a reasonable employer would adopt.
How does the court determine if a dismissal was fair?
1) Per 98(4), whether the employer acted reasonably in the circumstances in treating it as a sufficient reason for dismissal
2) Whether the employer’s decision to dismiss falls within a range of reasonable responses of a reasonable employer
3) Court must not substitute its own view/ hold to the standard of what they would have done differently
How does the “range of reasonable responses” test work?
Objective test
Applies to both:
Substantive reason for dismissal, and
Procedures followed by employer in relation to dismissal, e.g. investigations, etc
Subjective element in that it is limited to facts known by the employer/decision-maker at the time
General principles of procedural fairness in dismissal
Employee should know they are at risk of dismissal and why
Employee should be allowed to make representations (meeting/hearing)
Employee should be allowed a right of appeal (in most cases)
Does absence of any procedure result in automatic unfair dismissal for procedural unfairness?
No
Auth: Gallacher v Abellio
Gallacher v Abellio
Does the ACAS Code of Practice on Disciplinary and Grievance Procedures apply to all fair reasons of dismissal?
Not necessarily
Explicitly only applies to conduct and capability
But can be relevant to the others
ACAS CoP for Disciplinary
• Investigation
• Write to employee inviting to meeting:
o provide details of complaint against employee
o provide docs on which employer intends to rely
o advise of right to be accompanied/call witnesses
• Hold meeting
• Write to employee with decision/notify of right of appeal
• If employee wishes to appeal - write to employee with details of meeting/right to be accompanied
• Hold appeal meeting (with senior independent manager)
• Write to employee detailing outcome of appeal
ACAS CoP for Grievance
• Write to employer setting out grievance
• Employer to arrange meeting:
o employee has right to be accompanied
o employer to hold meeting (adjourn to investigate if necessary)
• Write to employee, setting out:
o decision and action employer will take (if any)
o notify of right of appeal
• If employee wishes to appeal - write to employer with details
• Employer to arrange meeting/ right to be accompanied
• Hold appeal meeting (snr. independent manager)
• Write to employee detailing outcome of appeal
Does gross misconduct always make dismissal fair?
Not necessarily
Employer must consider whether it was a reasonable sanction in the circumstances
Auth: Brito-Babapulle v Ealing Hospital
Brito-Babapulle v Ealing Hospital
Facts: Doctor permitted to have private patients. While on paid sick leave, she did work for her private patients. Disciplinary proceedings ensued, and she had two prior warnings. Dismissed for gross misconduct, tribunal saying gross misconduct always meant dismissal was a reasonable response. On appeal, was decided that the tribunal’s task is to assess whether the employer’s behaviour was reasonable having regard to the whole of the circumstances, including any mitigating factors (e.g. previous unblemished record, long service, consequences of dismissal).
Significance: Gross misconduct is not automatically fair dismissal.
What is the test for fair dismissal for conduct?
At the time of the dismissal, employer must have all three:
1) A genuine belief in the employee’s guilt/misconduct
2) Reasonable grounds for that belief
3) Carried out a reasonable investigation
Auth: BHS v Burchell
BHS v Burchell
Facts: UFD claim brought by employee. She had been dismissed on suspicion of abusing her store discount (dishonesty offence). Claimed unfair dismissal based on the quality of the investigation by e’er. By the time appeal was heard, she had been re-employed and all was going well, so did not attend.
Significance: For a dismissal on conduct grounds to be fair, at the time of the dismissal, employer must have (all 3 of following):
a genuine belief in the employee’s guilt/misconduct (burden on employer)
reasonable grounds for that belief
carried out a reasonable investigation
Does an employee admitting to the misconduct automatically render the dismissal fair?
No, fair procedure still needs to be followed in hearing explanations, considering alternative penalties
Auth: John Lewis v Coyne
John Lewis v Coyne
Facts: E’ee was using company phone for personal calls, in breach of policy. She was interviewed without warning, where she admitted she used the phone for personal calls, and summarily dismissed. Tribunal found that employer had failed to carry out fair disciplinary procedure. They did not assess how many of the phone calls were personal, to what extent it differed from others in the department, she wasn’t given a warning.
Significance: An employer was not always required to warn or undertake detailed inquiries prior to dismissing an employee who had admitted to dishonesty, but nevertheless the procedures had to be fair given the circumstances.
If an employee is accused of misconduct and denies it, what happens (no criminal charges)?
Employer must investigate objective evidence, e.g. CCTV, witnesses, documentary evidence
If an employee is charged with a crime but denies guilt, what happens?
The crime will only be grounds for dismissal where there are employment implications (e.g. violence, dishonesty, committed at work, likelihood of custody)
E’ee still has right not to be unfairly dismissed during proceedings
No obligation to delay disciplinary process pending outcome of police investigation/criminal proceedings
If an employee is suspended pending an investigation, what must the employer do?
Keep written record of investigative actions and make available to employee
Regularly review the suspension
Continue to pay the employee
Is the employer obliged to investigate every element of the employee’s defence?
No, just reasonable steps.
Auth: Shrestha v Genesis Housing
Shrestha v Genesis Housing
Facts: E’ee claimed too much petrol on expenses = fraud. E’ee argued that correct and fair investigation wasn’t followed, as they didn’t drive the route themselves. Court said the investigation was fair.
Significance: Not every claim by an employee needs to be investigated, just a reasonable investigation.
How to determine procedural fairness for capability dismissal (incompetence)
o Clearly expressed expectations
o proper investigation
timing - prompt or delayed?
o objective evidence:
appraisals
complaints
performance comparison with other staff
whether employee was set targets and given improvement period and their work properly monitored (e.g. PIP)
o reasonable conclusion
training/alternative employment considered
whether treatment consistent with that of other staff
What is the test for procedural fairness re: capability dismissal (long term illness)?
How long can the employer reasonably be expected to wait for the employee? Relevant factors:
Nature and likely duration/recurrence of illness
Length of employee’s service - presence and absences
Employer’s needs
Auth: Spencer v Paragon Wallpapers
Spencer v Paragon Wallpapers
Facts: Employee worked at a mill, was off sick. Mill was going through workforce reduction at the time. An unexpected workload came in, employer called the doctor, who advised that the employee needed another six weeks rest, having already been off 2 months. Employee dismissed.
Significance: Test for fair dismissal on capability grounds related to illness. Always fact dependent - no one timeline. In all circumstances, can the employer be expected to wait any longer, and if so, how much longer.
How to conduct a proper investigation for dismissal re: long term illness
Should be based on sympathy, tact, understanding
Consultation with employee
Assessment of medical records
Consulted with doctors and consider long-term prognosis
Consider alternative work/retraining
Auth: Lyncock v Cereal Packaging
Lyncock v Cereal Packaging
Facts: Employee was frequently absent for ill-health. Was given a verbal and two written warnings, then dismissed. Appealed internally, was re-instated with a warning that his attendance record had to improve. Eventually dismissed because attendance record didn’t meet the required standard. Claimed unfair dismissal; no medical evidence was called at tribunal. Appeal dismissed - employer had acted fairly.
Significance: Test for fair procedure regarding capability dismissals for illness. Must be done with sympathy, understanding, compassion. Includes nature of illness, likelihood of recurrence, length of absences and space of good health between them, need for the employee, impact on other employees, adoption and carrying out of the policy, a personal assessment, and communication from the employer that the point of no return is approaching.
What does an employer need to consider when deciding to dismiss for illegality?
Extent of illegality/statutory restriction and extent to which it affects the employee’s ability to do their job
Duration of the statutory restriction
Any alternatives to dismissal
How to conduct a fair investigation for illegality dismissals
Consultation with employee
Considered relevant surrounding circumstances
Considered alternative work/retraining
What must an employer show to establish fair dismissal: redundancy?
That it was reasonable to dismiss that specific employee by reason of redundancy
Must show:
Employee warned job at risk and consulted
Fair basis for selection
Employer taken reasonable steps to avoid/minimise job loss through redeployment
Auth: Polkey v AE Dayton
Polkey v AE Dayton
Facts: Company made three of four van drivers redundant with immediate effect. Driver complained of unfair dismissal. Tribunal ruled that the employers failed to consult per code of practice, but even if they had, would still have dismissed so not unfair. HoL held that the tribunal’s job is to identify whether the employer’s action in treating the reason as sufficient for dismissal as reasonable or unreasonable. Question is not what might have otherwise happened or if the employee suffered an injustice - that can go to compensation calculation.
Significance: Polkey deductions - compensation reduced where would have been dismissed anyways. Fair redundancy process requires:
• Warning to and consultation with individual employees
• Fair and consistent application of fair and objective selection criteria
• Consideration of alternative employment
When are UFD time limits extended?
Only where not reasonably practicable to present claim in time AND
Once practicable, claim brought within reasonable period
Remedies for UFD
Reinstatement
Re-engagement
Compensation
Is the basic award for UFD determined on gross or net pay?
Gross
What factors might reduce a basic UFD award?
Redundancy payment
Unreasonable refusal of alternative employment/other failures to mitigate
Failure to follow ACAS CoP
Employee’s conduct before dismissal makes it just and equitable to reduce
Accelerated receipt = 5% reduction
Recoupment of state benefits
Contributory fault inc. misconduct discovered post-dismissal
PILON/ex gratia award
Polkey deductions - if correct procedure followed, would employee have been dismissed anyways?
How is the compensatory award for UFD calculated?
To compensate the loss sustained by claimant in consequence of the dismissal insofar loss is attributable to the action taken by the employer
s123 ERA 1996
Do non-economic losses factor into a compensatory UFD award?
No
Auth: Dunnachie v Kingston
Dunnachie v Kingston
Facts: Employee was harassed and bullied by a colleague who was sometimes his line manager. The bully’s line manager failed to manage the situation and her superior deliberately discouraged the employee from making a complaint. Employee’s treatment caused ill health. Tried to argue for compensation for injury to feelings but but was ruled that s123(1) ERA does not allow recovery of non-pecuniary losses.
Significance: Damages for non-economic loss not recoverable in UFD.
Who carries the burden of proof for the losses factoring into a compensatory UFD award?
Claimant
Heads of loss for UFD compensatory award
Immediate loss of net earnings
Future loss of net earnings
Loss of pension rights and fringe benefits
Loss of statutory employment rights
Expenses in looking for work
Are bonuses factored into losses for UFD compensatory award?
Yes, if reasonably expected to receive them if there hadn’t been a dismissal
How are WD damages and UFD compensatory awards calculated in a dual claim?
WD damages for the notice period
UFD damages from when the notice period should have ended
Factors which can increase a UFD award
Failure to provide s1 statement: additional 2-4 weeks pay subject to weekly cap
Unreasonable failure to provide written reasons for dismissal (2 weeks gross pay uncapped)
Unreasonable failure to comply with ACAS CoP - up to 25% increase
What happens if an ET award is over £30k?
It gets “grossed up” to compensate for the tax owed on it, so the net they receive is the same
What is the effect of a settlement agreement?
Legally binding
Waives individual’s right to make claim to ET/court on matters specifically covered in the agreement
Unclear whether can waive rights re: unknown future claims
Bathgate v Technip Singapore
Facts: A sailor was made redundant, eventually signed a settlement agreement which included he would not pursue claims against the employer including those related to discrimination, irrespective of whether or not the employee was or could be aware of such claims when signing the agreement. Ruled that this agreement prevented him from bringing an age discrimination case after signing.
Significance: Settlement agreements can preclude the current claims as well as future claims provided the future claims are sufficiently identified.
Are settlement negotiations confidential?
Yes, under s111A ERA 1996, unless relating to an automatically unfair reason for dismissal
COT3
ACAS Conciliation Agreement form
Records a settlement faciliated by an ACAS conciliation officer
s94(1) Employment Rights Act 1996
Authority for Unfair Dismissal
Facts: Employee started on 8 April and notice period expired 7 April. Question was whether it satisfied continuous employment.
Significance: court ruled the first and last days of employment count, so C did satisfy.
Pacitti Jones v O’Brien
Where an employee was dismissed with less notice than entitled to under statutory minimum, then EDT is extended by the statutory minimum to achieve continuous employment, calculate basic award, get written statement of reasons, etc
Only applies if entitled to statutory notice - n/a for FTCs, summarily dismissed
s97(2) Employment Rights Act 1996 (paraphrased)
Facts: Employee gave 1 month’s notice, 2 days later was summarily dismissed for seeking work with a competitor. Held that it was a dismissal, and was unfair, as seeking work with a competitor does not justify dismissal in the absence of any evidence that the employee was planning to misuse confidential information. However, employee had been paid through to end of 1 month notice period, so suffered no loss.
Significance: Dismissal vs resignation/confidential information
Harris & Russell v Slingsby
Facts: Employee was told that her contract would be terminated and invited her to resign, which she did. Tribunal found she was dismissed by reason of redundancy and owed a redundancy payment.
Significance: “Invited to resign” is a dismissal.
East Sussex County Council v Walker
Facts: Director was threatened with dismissal if he didn’t resign. Negotiations over severance payment followed, agreement was drawn up and initialled. Dismissal or resignation?
Significance: EAT held that it was not a dismissal, since satisfactory terms of resignation had emerged, so threat of dismissal was no longer the “operative factor” in the decision.
Sheffield v Oxford Controls
Sets out 4 of the fair reasons for dismissal
s98(2) ERA 1996 (paraphrased)
Sets out “some other substantial reason” as a fair reason for dismissal
s98(1)(b) ERA 1996
Facts: Employee brought to UK to work as a domestic worker, with employer arranging visa. Visa expired, employer applied for an extension on the false basis that the employee was a family member, was rejected. Employee was summarily dismissed but was not told that her visa hadn’t been extended. Tried to bring a claim against employer who argued illegality made it a fair dismissal.
Significance: Found in favour of employee. Contract was lawful when made, became unlawful, but employee had not knowingly participated in illegal performance.
Okedina v Chikale
Facts: E’ee alleged automatic unfair dismissal for making protected disclosures. E’er asserted it was SOSR dismissal regarding relationships with line manager and a senior colleague. Tribunal found actual dismissal reason to be neither: she was dismissed due to her line manager’s loss of temper, and proper procedure was not followed, so unfair (but damages cap applied). At appeal, employee argued that burden of proof was incorrectly applied - if tribunal found the employer’s reason for dismissal was untrue, should have substituted her reason for dismissal.
Significance: Burden of proof on employer to show reason for dismissal was fair. E’ee can challenge e’er’s evidence and submit alternative evidence, but e’ee doesn’t carry a burden of proof. Tribunal then considers evidence as a whole, and can find it’s either party’s reason or neither.
Kuzel v Roche
Facts: Union dismissed its general secretary following a fight with the union president at a social event. Reason given was misconduct, but tribunal found the real reason was political in nature. EAT said a potentially fair reason could be a pretext for other reasons, and in that case, tribunal is entitled to find that the statutory reason submitted by employer was not the real reason.
Significance: Employer carries burden of proof both that the reason was one of the fair reasons, and that it was the real reason for the dismissal. The fact that an employer welcomes the opportunity to dismiss an employee for a good reason does not make the dismissal unfair. However, this does not mean that, whenever there is misconduct that could justify the dismissal, a tribunal is bound to find that this is the real reason for the dismissal. Once the employee has submitted evidence that the dismissal was caused by “pique or antagonism”, rather than a statutory reason, it is for the employer to rebut this by showing that the principal reason was for a statutory reason
ASLEF v Brady
Facts: Automatic unfair dismissal for whistleblowing. Manager had decided to dismiss employee for making protected disclosures, but hid the reason behind allegations of poor performance which were adopted in good faith by the decision-maker. Supreme Court said real reason for dismissal was the protected disclosures, even though the firing manager was unaware of the disclosures.
Significance: First look at the real reason for the dismissal, then see if it fits under fair reasons. Real reason is evaluated from POV of the decision maker but also other influences.
Royal Mail v Jhuti
Facts: Civil engineer, working at head office. Ran out of projects done from head office, was offered contract requiring site work, reference made to the fact that he wasn’t progressing within head office so a move would be to his benefit. E’ee refused and was dismissed. Was offered a redundancy payment but refused and claimed unfair dismissal. A Tribunal found he had been dismissed on capability grounds - for being inflexible/incapable of doing other roles in the business. Dismissal was fair.
Significance: Incorrect label given by the employer at the time of dismissal does not preclude them from relying on another reason at tribunal. But principal reason should be known to the employee before he is dismissed/at dismissal.
Abernathy v Mott
The determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.
s98(4) ERA 1996
Facts: Security guard was dismissed after failing to operate the security system and participating in an attempt to deceive e’er into making extra overtime payments. Question was whether it was sufficiently serious to warrant dismissal.
Significance: Test to apply is whether the e’er’s decision is within the band of reasonable responses to the e’ee’s conduct which a reasonable employer would adopt.
Iceland Frozen Foods v Jones
Gallacher v Abellio
Facts: Doctor permitted to have private patients. While on paid sick leave, she did work for her private patients. Disciplinary proceedings ensued, and she had two prior warnings. Dismissed for gross misconduct, tribunal saying gross misconduct always meant dismissal was a reasonable response. On appeal, was decided that the tribunal’s task is to assess whether the employer’s behaviour was reasonable having regard to the whole of the circumstances, including any mitigating factors (e.g. previous unblemished record, long service, consequences of dismissal).
Significance: Gross misconduct is not automatically fair dismissal.
Brito-Babapulle v Ealing Hospital
Facts: UFD claim brought by employee. She had been dismissed on suspicion of abusing her store discount (dishonesty offence). Claimed unfair dismissal based on the quality of the investigation by e’er. By the time appeal was heard, she had been re-employed and all was going well, so did not attend.
Significance: For a dismissal on conduct grounds to be fair, at the time of the dismissal, employer must have (all 3 of following):
a genuine belief in the employee’s guilt/misconduct (burden on employer)
reasonable grounds for that belief
carried out a reasonable investigation
BHS v Burchell
Facts: E’ee was using company phone for personal calls, in breach of policy. She was interviewed without warning, where she admitted she used the phone for personal calls, and summarily dismissed. Tribunal found that employer had failed to carry out fair disciplinary procedure. They did not assess how many of the phone calls were personal, to what extent it differed from others in the department, she wasn’t given a warning.
Significance: An employer was not always required to warn or undertake detailed inquiries prior to dismissing an employee who had admitted to dishonesty, but nevertheless the procedures had to be fair given the circumstances.
John Lewis v Coyne
Facts: E’ee claimed too much petrol on expenses = fraud. E’ee argued that correct and fair investigation wasn’t followed, as they didn’t drive the route themselves. Court said the investigation was fair.
Significance: Not every claim by an employee needs to be investigated, just a reasonable investigation.
Shrestha v Genesis Housing
Facts: Employee worked at a mill, was off sick. Mill was going through workforce reduction at the time. An unexpected workload came in, employer called the doctor, who advised that the employee needed another six weeks rest, having already been off 2 months. Employee dismissed.
Significance: Test for fair dismissal on capability grounds related to illness. Always fact dependent - no one timeline. In all circumstances, can the employer be expected to wait any longer, and if so, how much longer.
Spencer v Paragon Wallpapers
Facts: Employee was frequently absent for ill-health. Was given a verbal and two written warnings, then dismissed. Appealed internally, was re-instated with a warning that his attendance record had to improve. Eventually dismissed because attendance record didn’t meet the required standard. Claimed unfair dismissal; no medical evidence was called at tribunal. Appeal dismissed - employer had acted fairly.
Significance: Test for fair procedure regarding capability dismissals for illness. Must be done with sympathy, understanding, compassion. Includes nature of illness, likelihood of recurrence, length of absences and space of good health between them, need for the employee, impact on other employees, adoption and carrying out of the policy, a personal assessment, and communication from the employer that the point of no return is approaching.
Lyncock v Cereal Packaging
Facts: Company made three of four van drivers redundant with immediate effect. Driver complained of unfair dismissal. Tribunal ruled that the employers failed to consult per code of practice, but even if they had, would still have dismissed so not unfair. HoL held that the tribunal’s job is to identify whether the employer’s action in treating the reason as sufficient for dismissal as reasonable or unreasonable. Question is not what might have otherwise happened or if the employee suffered an injustice - that can go to compensation calculation.
Significance: Polkey deductions - compensation reduced where would have been dismissed anyways. Fair redundancy process requires:
• Warning to and consultation with individual employees
• Fair and consistent application of fair and objective selection criteria
• Consideration of alternative employment
Polkey v AE Dayton
Facts: Employee was harassed and bullied by a colleague who was sometimes his line manager. The bully’s line manager failed to manage the situation and her superior deliberately discouraged the employee from making a complaint. Employee’s treatment caused ill health. Tried to argue for compensation for injury to feelings but but was ruled that s123(1) ERA does not allow recovery of non-pecuniary losses.
Significance: Damages for non-economic loss not recoverable in UFD.
Dunnachie v Kingston
Facts: A sailor was made redundant, eventually signed a settlement agreement which included he would not pursue claims against the employer including those related to discrimination, irrespective of whether or not the employee was or could be aware of such claims when signing the agreement. Ruled that this agreement prevented him from bringing an age discrimination case after signing.
Significance: Settlement agreements can preclude the current claims as well as future claims provided the future claims are sufficiently identified.
Bathgate v Technip Singapore
