Unfair Dismissal
Deductions, Polkey and the ACAS Code:
- Employees failure to mitigate loss - Employees contribution to dismissal. - Any redundancy or ex-gratia payment - Where dismissal is unfair purely on procedural grounds, a tribunal can reduce the compensation to the claimant or elimitate it completely, in proportion to the likelihood that the dismissal would have gone ahead even if the correct procedure had been followed. - s.207A(2) TULRCA 1992: If the emloyer hasnt followed ACAS code, compensation can go up by 25%. - S.207A(3) If the employee has followed ACAS Code, compensation can go down by 25%.
ACAS:
- Enterprise and Regulatory Reform Act 2013 introduced Early Concilation for all workplace disputes, with some very limite exceptions. - The new procedure for early consiliation through ACAS is outlined in the ET. - Must go through ACAS first. The official reason is because ACAS are used to promote good industrial relations and to reduce the number of claims. Must show that they have attempted to engage with ACAS before bringing a claim by getting a certificate. Untill you have the certificate you cannot bring a claim to the ET. When you engage with ACAS, the 3 month time limit stops.
Contractual Procedures:
- Failure to operate the contractual proecdures properly. - Polkey v A.E Dayton Services Ltd: Procedure is key, failure to follow the correct procedures, BOTH contractual and the ACAS code, may render an otherwise fair dismissal unfair.
Norton Tool Guidelines
- Immediate loss of wages - Future oss of wages--> 12-18 months - Loss of fringe benefits--> E.g. pension - Cannot get compensated for the manner of dismissal--> Dunnachie v Kingston Upon Hull City Council - Loss of statutory employment rights- It is common for tribunals now to award £300 for loss of statutory rights e.g. having to work elsewhere for another 2 years to be entitled to unfair dismissal.
Procedural Issues:
- Invesitgations and Beliefs - Normally the ET would require the employer to show: 1. A genuine belief 2. based on reasonable grounds 3. Following reasonable investigation - Doesnt matter if the employer actually got it right as long as theyve followed the above.
What is stage 1?
- Is the claimant an employee? - Is he within one of the excluded categories of employee? - Has he been employed for atleast 2 years continuously by the dismissing employer? - Has the complaint been presented within 3 months of the "Effective date of termination" of the contract?
Dismissal without notice:
- Known as "instant" or "summary" dismissal.
Non-renewal of a limited term contract (s.95(1)(b)).
- Meaning of a limited term contract: Dixon v BBC: If the maximum duration of the contract is fixed at its commencement, the contract will terminate automatically when the agreed date of expiry arrives. It is immaterial that the contract may be determinable according to its terms within the agreed period. - "Task" Contracts: Wiltshire County Council v NATFHE: E.g. if you employ someone to build your house, once built, contract comes to an end.
Provide other examples:
- RDF Media Group v Clements [2007] EWHC 2892 (QB) 2 parties in an employment relationship. High court said that if the employee is in breach of mutual trust and confidence themselves, they cannot launch a complaint that they've breached it too. • Nottingham University v Eyett [1999] ICR 721 • High court said that at the moment, the employer has to take some positive action to breach mutual trust and confidence. Eyett said that hadn't been advised properly as to their pension rights. University did nothing and mutual trust and confidence requires the positive taking of a step in order to be breached. • Spafax v Harrison [1980] IRLR 442 Lawful conduct cant amount to a breach. Contract was really clear and the express terms put the employee worst off financially. No breach as it was in the contract.
Stage 1: Length of continuous employment:
- S.108 imposes a major limitation on eligibility immediately prior to the date of dismissal. - This requirement does not apply where the employee is dismissed for certain "automatically unfair" reasons such as trade union reasons (s.152(1)) Trade Union and Labour relations act 1992, in which case the employee has protection from the first day of employment. - R Secretary of State for Employment ex p Seymour Smith and Perez--> A claim brought that argued that the 2 year requirement was discriminatory on the grounds of sex as women are more likley to have shortened lengths of service than men. Failed as it apparantly had no adverse effectd and even if it was it was objectively justified. - Redfearn v UK--> dismissed for his political opinions. Courts said that if you are dismissed for your political affiliations, you are protected from day 1 and dont need the 2 year qualifying period. - If you are dismissed for trying to enforce a statutory right, that is automatically unfair and the 2 year qualifying requirement doesnt apply.
Misdirection on a point of law:
Dobie v Burns International Security Services: The initial tribunal got the law wrong. If the tribunal misdirect on a point of law, if the conclusion might have been wrong because of the misdirection, it mut go back to the tribunal to be reheard.
Extending the EDT:
- There are certain complicating factors in s.97(2)-(5): Where the employee is entitled to a statutory minimu period of notice under s.86 of the ERA, the date at which the statutory notice would have expired if duly given will be deemed to be the EDT for certain specified purposes only, even though the employee actually leaves the job on a different date.
Counter notice by the employee:
- Thompson v GEC Avinonics Ltd: If the employee serves a counter notice, it is still deemed to be a dismissal by the employer. Effective date of termination is when the employees counter notice expires. Internal appeals: - Stapp v Shaftesbury Society: Juat because an employee is going through an internal appeal, this doesnt change the effective date of termination.
Stage 1: b) Continuity of employment:
- ss.210-219 of the ERA contain detailed provisions on continuity. - Relevant to find out how much compensation you'll get.
s.97 provides the basic rules:
- the date the notice period expires, if the employee is given notice. - The date of dismissal, if the employee is summarily dismissed; or - the date of dismissal, if the employee is dismissed with payment in lieu, or - the date a fixed term contract expires without being renewed.
Provide an example to illustrate the above:
An employee is dismissed summarily after 1 week short of 2 years service. Strictly she does not have the requisite 2 years service to claim unfair dismissal. However, s.97(2) allows the employee to add on the s.86 notice that should have been given (here, 1 week) in calculating the EDT. Thus, the employee gains the 2 years qualification and can claim unfair dismissal. - Only the s.86 notice can be used in this way. The contractual notice is irrelevant. If the sumary dismissal was contractually justified (e.g. dismissal for gross misconduct) then this device cannot be applied.
What are the 5 stages of Unfair Dismissal?
1. Eligibility 2. Employee must show that he has been "dismissed". 3. The employer must show the reason for the dismissal 4. The "reasonableness" issue.
So there can be three different dates of termination of the same employment:
1. One for ascertaining the length of continuous service 2. Another for calculating the time limit for making a claim for unfair dismissal. 3. Yet another for common law purposes.
Constructive dismissal and unfairness:
A finding of constructive dismissal does not necessarily mean that the employer has acted unreasonably and acted unfairly, though this will usually be the case. A finding of constructive dismissal is merely a finding that the employee has been dismissed. - The proper question was formulated in Savoia v Chiltern Herb Farms Ltd as being whether, although in fundamental breach of contract, the employer had in all the circumstances behaved failrly.
The appeal procedure:
ACAS code of practice: • West Midlands Co-operative Society Ltd v Tipton An appeal is part of the continuing process of dismissal and anything that comes to light is relevant in deciding whether a dismissal is fair or unfair. • Sartor v P & 0 European Ferries (Felixstowe) Ltd [1992] IRLR 273 CA Where there is a bad initial dismissal, this can be cured by a fair appeal hearing providing that it is a full re hearing of all the facts. • Where the employee does appeal and the dismissal is confirmed, the effective date of termination will be . . .the date of any initial decision to dismiss and not the later date upon which the dismissal is confirmed, as confirmed in... • (Sainsbury J. Ltd v Savage [1981] ICR 1 CA approved in West Midland Co-operative Society Ltd v Tipton). If the appeal succeeds there will be retrospective reinstatement
Constructive Dismissal: s.95(1)(c):
Applying Western Excavating Ltd v Sharp: It is clear that in order for an employee to be able to claim constructive dismissal, four conditions must be met: 1. There must be a breach of contract by the employer. This may be either an actual breach or an anticpatory breach. 2. That breach must be sufficiently important to justify the employee resinging, or else it must be the last in a series of incidents which justify his leaving. 3. He must leave in response to the breach and not for some other, unconnected reason. 4. He must not delay too long in terminating the contract in response to the employers breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.
Arrangement or custom:
Booth v USA: They said that arrangement means that in advance of the break, if there has been some discussion or agreement that the employee and employer regard the relationship as being continuous, the work would continue even though there was no contract in place. E.g. career break schemes.
Provide other cases:
Boston v Deepsea fishing & Ice Co v Ansell: Common law decision where what the employer finds out after dismissal is also relevant. West Midlands Co-operative Society v Tipton: EXCEPTION: In this case, the employee was dismissed and the company refused them a right of appeal. HL said that this wasnt fair and that appeals should be treated as part of the continuing process of dismissal. Appeals come after dismissals. Anything that comes to light in the appeal stage is relevant in assessing fairness in deciding on the dismissal. Stacey v Babcock Power Ltd: EAT said that anything that happens between when notice is given and expires is also relevant when assessing fairness. Someone given notice of dismissal for redundancy and then got a massive upturn of business. Held not to be fair and the reasoning was approved in CA in the below case. Alboni v Ind Coope Retail Ltd: Must look at the whole process from the giving of notice to the expiry of notice.
A Fair Hearing:
Clark v Civil Aviation Authority: The EAT stated that a hearing should adopt the following pattern: Explain the purpose of the meeting. Identify those present. If appropriate, arrange representation. Inform the employee of the allegations. Indicate the evidence-in writing or by calling witnesses. Allow the employee to ask questions (though there is no legal obligation to allow the employee to cross-examine witnesses: Santamera v Express Cargo Forwarding [2003] IRLR 273). Allow the employee to call witnesses. Listen to the arguments raised. • Right to be accompanied • s10 ERA 1999 (Note also ss. 11 and 12)# • Can only be by a fellow employee or a trade union representative • If employer refuses, tribunal can reward compensation of up to 2 weeks pay • If dismissed for trying to enforce this right, then it will be regarded as an automatically unfair dismissal.
Compensation:
Comes in 2 parts: 1. A basic award 2. A compensatory award
Knowledge of the reason:
Devis & Sons Ltd v Atkins: Employer can only take into account what they knew on the day and time in dismissal in coming to that conclusion. The common law is different. Misconduct case: Employer has to have an honest belief at the time of dismissal that the facts showed that there was a fair reason to dismiss. Not a criminal or civil standard of proof. Just need an honest belief but has to be based on reasonable grounds. This means that when the conclusion is formed, there should have been some investigatory work.
Illness:
East Lindsey District Council v Daubney: The employer should: • (a) investigate the nature of the illness; • (b) investigate the likely length of absence; • (c) assess the impact on the business (.i.e. does that employee hold a key position?). • (d) assess the impact the absence will have on other employees, • (e) take account of available medical evidence. This will often mean that the employer will have to obtain appropriate medical reports. • (f) take notice of the employee's length of service and any contractual sick pay scheme; • (g) consider alternative work; • (h) consult the employee over the issues noted above
Automatic Unfairness under s.105 ERA:
First, in each case it is necessary to show that the circumstances constituing the redundancy applied eqaully to one or more other employees in the same undertaking who held positions similar to that of the dismissed employee or employees, and yet were not dismissed. • The second condition : the claimant was selected for one of the following inadmissible reasons : • trade union reasons as set out in s. 152 of the TULR (C) A 1992 (see s.153 of TULR (C) A 1992); • for family reasons e.g. pregnancy or parental leave (not strictly governed by s.105 but s.99 has a similar effect); • assertion of statutory rights as set out in s.104; • making health and safety complaints as set out in s.100. • miscellaneous other reasons e.g. exercising minimum wage or working time rights, protected 'whistleblowing', acting as workers' representative - see s.105(2A)-(7N) for the full list • Unreasonableness under s.98(4) • Though redundancy dismissals will usually be fair, there are three main ways in which they may be rendered unfair : 1. if selection criteria were not objectively justifiable or applied fairly 2. if consultation with the affected employees was not undertaken 3. if the possibility of alternative employment was not considered
Effective date of termination
For a number of reasons, it may be crucial to fix the precise date of termination: 1. It establishes the end of the employees period of continuous employment. 2. The employees claim to the tribunal will usually have to be presented within 3 months of this date. 3. An employee is entitled to request a written of reasons for his dismissal after the effective date of termination.
Stage 2: Termintion by the employer: s.95(1)(a):
Futty v Brekkes: "If you dont like the job, **** off" The worker thought he had been dismissed. Weren't really dismissing him, more of a "get on with it".
Are all breaches repudiatory?
Hilton v Shiner: EAT said that the employers conduct must have been without reasonable and proper cause. Morrow v Safeway Stores: Implied term of mutual trust and confidence considered. Stated that any breach of mutual trust and confidence will be repudiatory.
Business reorganisations:
Hollister v National Farmers Union: Must show that you had a pressing business need for change. Must consider: • (a) whether the employer consulted with the employee and any employee representatives; • (b) whether the employer considered alternative courses of action; • (c) whether the terms were those which a reasonable employer would offer; • (d) what is the balance of advantages and disadvantages to both parties; • (e) whether the majority of employees have accepted the change
Re-engagement (s.115):
If a tribunal makes an award for re-engagement, the employee returns to work either with his original or an associated employer provided that the new job is comparavle to the old or is otherwise suitable.
Re-instatement: s.114:
If the tribunal makes an award of re-instatement, the employee is reinstated into the job that he did before being dismissed.
Intermittent Absences e.g. missing every other Friday:
International Sports Co Ltd v Thompson: Had 25% of their 18 month employment off. Provided with various sick notes. Given 4 warnings. Still persisted so dismissed and EAT sided with the company. "What is required... is, firstly, that there should be a fair review by the employer of the attendance record and reasons for it; secondly, appropriate warnings after the employee has been given the opportunity to make representation" Rolls Royce v Walpole: Individuals absence record was 50% for 3 years employment-> Not acceptable
The last straw doctrine:
Lewis v Motorworld Garages Ltd: "The last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?
s.98(4)
Looking at s.98(4), 2 pervasive questions may be asked: 1. Did the employer use a fair procedure? 2. Did the employers decision to dismiss fall within the range of reasonable responses open to a reasonably employer.
Dismissal with notice:
Lord Parker CJ stated in Morton Sundour Fabrics v Shaw: "As a matter of law you cannot dismiss an employee by saying "i intend to dispense with your services in the coming months"--> Has to be clear. - It is not essential that the employer has indicated a specific date of termination. it is not enough to give a warning of impending dismissal at some unascertained time in the future. - Once notice has been given, it can only be revoked with the consent of the other party to the contract ( Riordan v War Office)
Provide case law to illustrate the above:
Monie v Coral Racing: Money gone missing from a safe. Only 2 people had access to the safe. Monie and the assistant. Investigation undertaken by the security guard. Narrowed it down to 2 people. Employer decided to sack both of them. CA took the view that where the employer has a reasonable suspicion, it is not necessary for the employer to believe that either had in fact acted dishonestly. Sufficient to show they had a genuine belief on reasonable grounds following reasonable investigation. CA held that the employer had acted reasonably. Not looking for conclusive proof of guilt. Airbus v Webb: CA said that the employer can take into account an expired warning. Someones been warned about their conduct and gone on their file but will expire after 12 months. Webb had a warning that had expired. Found watching TV in company time and dismissed in circumstances where other people that didnt have an expried warning werent dismissed. Still held to be a fair dismissal.
ET must not substitute its own decision:
Most important limitation which the appeal courts have continually stressed is that the tribunal must not substitute its own decision as to what it would have done in the circumstances for that of the employer. It is not their job to decide what was the most reasonable course of action or the best decision. - The ET must decide whether no reasonable would have dismissed in those circumstances.
Peversity on the facts:
Neal v Hereford and worecester county council: Must show that the ET has reached a conclusion that no reasonable tribumal would have reached on the facts
1. Did the employer use a fair procedure?
Polkey v A E Dayton Services Ltd: "...an employer having prima facie grounds to dismiss for one of these reasons will in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as "procedural,"... Thus, in the case of incapacity, the employer will normally not act reasonably unless he gives the employee fair warning and an opportunity to mend his ways and show that he can do the job; in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation; in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy arid takes such steps as may be reasonable to avoid orminimise redundancy by redeployment within his own organisation." per Lord Bridge • Have regard to: 1. the ACAS guidelines 2. the employer's contractual position
Consistency of treatment:
Proctor v British Gypsum Ltd: 1. An otherwise fair dismissal might be classified as unfair in light of inconsitency of treatment. 2. Through ERA 1996, s.96 demans considweration of the individuals case, comparrisons may be valid if they reveal a pattern that is understoodin the company that such conduct will be overlooked, that the comparrisons reveal that the reason given for dismissal is not genuine, or that the cases are analogous. 3. Changes in circumstances e.g. an increase in theft, might well justify changes in policy (though some form of prior notification would necessary). In such cases, acting severly as a deterrent to other may be acceptable. Paul v East Surrey District Health Authority: CA said that whilst recongising the importance of consistency, some incidents are necessaryly common over the years and are entitled to take into account aggravating and mitigating factors. Securicor Ltd v Smith: You shouldnt assume that 2 people have commited the same kind of offence, that because theyve been dealth with differently that there has been an inconsistency.
Qualifications:
S.98(3)(B) states that qualifications means "any degree, diploma or other academic, technical or professional qualification relevant to the position which the employee held" Singh v London Country Bus Service: Qualifications only means academic/technical qualifications and doesnt extend to personal qualifications such as trustworthiness.
Size of the employer:
S.98(4) expressly requires the ET to take into account "the size and administrative resources of the employers undertaking" in judging the reasonableness of his decision to dismiss. This could be particularly important in terms of the policies, procedures and investigations to be expected of the employer. Obviously small employers would be given more leeway than large ones. The bigger the company, the higher the expectations of procedure.
STAGE 4: Fair Procedure:
S.98(4) of the ERA states: "the determination of the question of 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." The burden of proof regarding fairness is neutral.
Capability or qualifications: S.98(2)(a)
S98(3) Defines capability as "capability assed by reference to skill, aptitude, health or any other physical or mental quality".
Incompetence:
Taylor v Alidair: People continually failing to hit targets. Tribunal said that it is sufficient that the e,ployer honestly believes on reasonably grounds that the employee is incompenent. Airline piolot dismissed as he was at fault for a bad landing that damaged the air lane. Fair to dismiss him even though it was only one occasion. There are activities in where the professional skill is so high that one failure to perform is enough to justify dismissal. ILEA v Lloyd: Teacher made a mistake at work and employer dismissed for one mistake. The principle in the above case is restricted to where health and saftey is a issue. An employer should be given the opportuinity to improve--> James v Waltham Holy Cross UDC
Industrial Action:
The ERA s107 expressly provides that in determining the reason or principal reason for the dismissal: a) No account shall be taken of any pressure which- by calling, orgainisng, procuring or financing or other industrial action, or threatening to do so, was exercised on the employer to dismiss the employee. • (b) any such question shall be determined as if no such pressure had been exerted.' • Ford Motor Co Ltd v Hudson [1978] ICR 482 • "the pressure exerted on the employers [was] such that it could be foreseen that it would be likely to result in the dismissal of those employees in respect of where the pressure was being brought?"
Who must prove continuity?
The basic presumption of coninuity is set out in s.210(5) of the ERA: "a persons employment during any period shall, unless the contrary is shown, be presumed to have been continuous"--> Rebuttable. Nicoll v Nocorrode: Appeal tribunal said that if it is unclear whether they have worked the necessary period, they only need to show some weeks which count towards continuity, and the burden is then on the employer to disprove continuity.
Misconduct outside the employment:
The basic principle is set out in the Code of Practice: "If an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee's suitability to do the job and their relationship with their employer, work colleagues and customers. So, this will only justify dismissal if the criminal conduct in some way affects the business or undermine the confidence which the employer needs in his employees." Have to look at the effect it has at the employment relationship. Just because the employees been charged with an offence, doesn't mean the employer doesn't have to carry out an investigation. Singh v London Country Bus services: Said that an employer is not required to await the outcome of criminal proceedings before dismissing someone, but equally, an employer cannot dismiss someone simply because theyve been charged with an offence. The offence will have to have some bearing on the employment relationship. Love Ltd v Anderson: Employer will have to conduct their own investigations before any decision to dismiss is deemed to be fair.
Compensatory award: s.123-124:
The compensatory award is not calculated by to a fixed formula - The tribunal must consider what is "just and equitable" compensation for the losses incurred by the employee following the dismissal. Since 1999, the maximum award has been inflation linked and is adjusted annually. At the time of writing the maximum compensatory award is £86,444 or 1 years gross salary (whichever is lower) Guidelines as to how to calculate the compensatory award were set out in Norton Tool Co Ltd v Tewson.
Automatically unfair reasons:
The consequences of a dismissal being automatically unfair are: 1. The normal criteria for determining whether a dismissal is fair do not apply. 2. In almost all cases the employee does not have to have completed any qualifying period of continuous employment - National mimimum wage claim - Joined a trade union - asked to take paternity leave: If sacekd for one of those reasons you are protected from day 1.
Basic award ss.119-122:
The employees basic award is easily calculated. The tribunal arrives at the awarded figure using a fixed formula. The formula reflects: 1. The employees age 2. His previous length of service 3. And multiplies this by his weekly earnings age x service x weeks pay - Maximum amount of weekly pay that can be used is £525. -For any serice where the employee was 41 or over the factor is 1.5 - For any service between the ages of 22 and 41 the factor is 1. - For any service below the age of 22 the factor is 0.5 - The maximum amount of service is 20 years. Maximum basic award payable is therefore 20 years x 1.5 x £525
Potentially fair reasons:
The employer must establish that the reason shown falls within one of the categories specified in statute: • The bulk of dismissal cases are for one of the 'potentially fair' reasons listed in s.98(2). These are : • Capability and qualifications - s98(2)(a) • Conduct - s98(2)(b) • Redundancy - s98(2)(c) • Statutory illegality - s98(2)(d) • Additionally s.98(1) (b) provides a catch-all category, namely : • "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held". (SOSR)
STAGE 3: The reason for dismissal:
The employer must prove: a) the reason for the dismissal: b) and that it was a potentially fair reason:
Mutual Trust and Confidence:
The implied term was held to be as follows: "The employer shall not without reasonable and proper cause conduct itself in a manner calcuated and likely to destroy or seriosuly damage the relationship of trust and confidence between the employer and employee." Therefore, if the employer acts in such way this will be a repudiatory breach of the implied term.
Stage 1: b) Excluded Classes:
The most common excluded categories are: - Share fishermen--> People who catch fish and get paid according to the amount of fish they catch. Police officers are excluded by S.200 ERA 1996. Employees working under illegal contracts.
STAGE 5: Remedies:
There are 3 remedies: 1. Reinstatement (s.114) 2. Re-engagement (s.115) 3. Compensation
Stage 1: a) Is the claimant an employee?
To be eligible, the claimant must be an employee as defined in s.230 of the ERA: "Employee means an individual who has entered into or works under a contract of employment" - Also requires analysis of employee status.
What happens when there is a change of employer?
Transfer of business: S.218(2) ERA: If you work for a business and the assets of the business are sold to someone else, your continuity of employment is preserved. If there is a change of employer on your own behalf, your continuity of employment is destroyed. Only applies when the business your working for is sold to another individual.
Personality Differences:
Treganowan v Robert Knee & Co Ltd: Office environment. One employee boasted about her relationship with a man half her age. Annoyed other employees who thought this was scandolous behaviour. Tense office environemnt. Employee dismissed and seen as fair.
The ACAS guidelines:
Under TULRCA 1992, s.999 ACAS may issue codes of behaviour. Employers should: • Establish the facts of each case • Inform the employee of the problem • Hold a meeting with the employee to discuss the problem • Allow the employee to be accompanied at the meeting • Decide on appropriate action and inform the employee accordingly in writing. • Provide employees with an opportunity to appeal • s 207A(2) TULRCA 1992 If an employer doesn't follow the ACAS code and the employee is successful, then compensation to the employee can be increased by up to 25%. There also an obligation on employees to follow the "disciplinary part" of the code before commencing tribunal action. They have to: - Let the employer know the nature of the grievance - Have a meeting with the employer to discuss the grievance - take the grievance further if not resolved i.e. appeal. 207A(3) TULRCA--> if the employee wins, the compensation can be decreased by up to 25%
Claim in time:
Under s.111(2) a claim must be ade within 3 months of the effective date of termination, or such further period as the tribunal considers reasonable if presentation within 3 months was not reasonably practicable. See case law on this point in lecture outlines.
Waiving the breach:
Waltons & Morse v Dorrington: Tribunal expressly acknowledged that where the employer has to decide between staying in a job and waiving a breach or leaving and being unemployed, courts are sympathetic. In this case the employee stayed for 2 months and was still able to claim constructive dismissal.
Redundancy: s.98(2)(c);
Was redundancy necessary at the time: Orr v Vaughan: ET looked at the closure of a hairdressers. Generally courts wont investigate the commercial and economic reasons that forced a company to close.
What amounts to a repudiatory breach?
Woods v WM Car Services Ltd; CA said there is no rule or fixed test to determining whether a particular set of facts constitutes a repudiatory breach. Depends on the facts of each case. Pederson v Camden London BC: The question of whether a breach of contract is repudiatory is one of mixed fact and mixed law.
Can continuity be preserved even when there is no contract?
s.212(3) ERA: If you got rid of by a company because you were ill and then they took you back on, if the absence was less than 26 weeks, your continuity is preserved. Donnelly v Kelvin International Services: It doesnt mean the employee was incapble of doing anything at all, just the job in which they were doing, e.g. strenuous work. - Temporary cessation of work: Ford v Warwickshire: - Teacher worked for council, employed on 8 contracts, each lasting for 1 academic year. The problem here is when theres no contract, theres no continuity. Mrs Ford argued that these gaps were just temporary cessations of work. HL case and they decided the gaps were temporary cessations of work.
Stage 2: Dismissal
s.95(1): of the ERA provides a definition of dismissal: • "(1) For the purposes of this Part an employee is dismissed by his employer if, (and, subject to subsection (2) and section 96, only if) - • (a) the contract under which he is employed is terminated by the employer, (whether with or without notice); or • (b) he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or • (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct." ('constructive dismissal') There is no dismissal within the statute where: - The contract is frustrated - Contract terminates by mutual agreement
Provide examples of cases including mobility clauses:
• Express Lifts Co Ltd v Bowles [1977] ICR 474 Mobility clause that the employee could be required to work anywhere in the UK. Wanted to move him from Notts to Scotland. Employee refused because wife was ill. He resigned and claimed constructive dismissal. ET said no as the contract gave them a right to remove him. • But cf. United Bank Ltd v Akhtar [1989] IRLR 507 Worked in Leeds. Mobility clause was UK wide. Bank wanted to move him to Birmingham on 6 days notice. Wife seriously ill so resigned and claimed unfair dismissal. Difference is the rise in the implied term of mutual trust and confidence. • White v Reflecting Roadstuds Ltd [1991] IRLR 331 Employee transferred to a lower paid job, resigned and claimed constructive dismissal. White tried to argue that there was an obligation on employers to always execricse express terms in a reasonable manner. This failed. NB If he argued there was an breach of the implied term of trust and confidence - there could have been a different result.
Did the employers decision to dismiss fall within the range of reasonable responses open to a reasonable employer.
• Lord Denning in British Leyland (UK) Ltd v Swift [1981] IRLR 91 CA said that there is a "band of reasonableness" • CAUTION • 1ST WARNING • 2ND WARNING • FINAL WARNING • SUSPENSION • DISMISSAL • Would a reasonable employer have dismissed in those circumstances? If no reasonable employer would have, then this will be an unfair dismissal.
Conduct: s.98(2)(b)
• Misconduct which might justify dismissal includes . . . • disobedience to lawful orders; • abusive language • theft; • fraud; • taking bribes • drunkenness at work • unacceptable personal appearance • intermittent absenteeism; • persistent lateness; • conduct occurring outside the employment relationship which has a direct bearing on the contract of employment.
Changes in terms and conditions:
• RS Components Ltd v Irwin [1973] ICR 353à Losing profits cause ex employees set up in competition. Company wanted to get remaining sales people to sign up to a restrictive covenant. Some employees weren't prepared to do this and were dismissed. Seen as fair as the employer had a sound reason for implementing this change. • Cresswell v Board of the Inland Revenue [1984] IRLR 190 • Temporary engagements • Terry v East Sussex County Council [1977] 1 All ER 567, [1976] ICR 536 • North Yorkshire County Council v Fay [1985] IRLR 247 "... if it is shown that the fixed term contract was adopted for a genuine purpose and that fact was known to the employee, and it is also shown that the specific purpose for which the fixed term contract has ceased to be applicable then, for the purposes of [section 98], these facts are capable of constituting some other substantial reason."
Provide cases to support the above:
• Robert Cort & Son. Ltd v Charman [1981] ICR 816 Even if at common law acceptance of a beach by the employee is needed to terminate, this only works at common law. The acceptance argument doesn't work for unfair dismissal. • Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53 CA If wages given in payment in lieu of notice, the date of termination is the day payment is given. • Brown v Southall and Knight [1980] ICR 617 Ntocie of dismissal is communicated when the employee has read the letter or could reasonably expected to have read the letter. • McMaster v Manchester Airport plc [1998] IRLR 112 EAT rejected the above argument and said that you need to show that the employee has actually read the letter.
Dismissal at behest of third parties:
• Scott Packing and Warehousing Co Ltd v Paterson [1978] IRLR 166 EAT Insistence from a customer that the employee be dismissed. Satisfied the grounds for dismissal. • Dobie v Burns International Security Services (UK) Ltd [1984] 3 All ER 333, [1984] IRLR 329, [1984] ICR 812, CA Tribunal needs to look at the injustice suffered by the employee and whether the dismissal was fair in all the circumstances.
"Some other substantial Reason" S.98(1)(B):
• The general approach of the courts • Kent County Council v Gilham (1985): "The hurdle over which an employer has to jump at this stage of an enquiry into an unfair dismissal complaint is designed to deter employers from dismissing employees for some trivial or unworthy reason. If he does so, the dismissal is deemed unfair without the need to look further into its merits. But if on the face of it the reason could justify the dismissal, then it passes as a substantial reason, and the enquiry moves on to [what is now ERA 1996, s. 98(4)] and the question of reasonableness."
Stautory Illegality:
• Under s 98(2) the employer can in principle fairly dismiss an employee where he can show 'that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under any enactment'. • Appleyard v Smith (Hull) Ltd [1972] IRLR 19, IT: A was employed as a fitter/driver but was dismissed when he was disqualified from holding a driving licence for 12 months. The Beverley tribunal, in holding the dismissal not to have been unfair, pointed out that: (i) The company considered the holding of a driving licence to be an essential requirement for an employee and trained their apprentices to drive at 17 years; (ii) the employer had given thought to fitting him in elsewhere, but this was not practicable in such a small concern. The tribunal rejected as unreasonable the suggestion that someone else could have test driven the vehicles repaired by A.
Examples of a repudiatory breaches:
• Victimisation: Gardner v Beresford [1978] IRLR 63 • Unilaterally changing the employee's job content or status: Coleman v Baldwin [1977] IRLR 342 • Humiliating employees in front of others: Isle of Wight Tourist Board v Coombes [1976] IRLR 413 • Unwarranted demotion or disciplinary sanctions: Cawley v SWEB [1985] IRLR 89 • Improper use of disciplinary sanctions such as issuing a final warning for a minor offence: Stanley Cole (Wainfleet) Ltd v Sheridan [2003] ICR 297 • Falsely accusing an employee of misconduct or incapability: Robinson v Crompton Parkinson Ltd [1978] IRLR 61 • Unilateral variation in contract terms, e.g., a change in hours or pay: Woods v WM Car Services Ltd [1982] ICR 693 CA • deliberately withholding pay: Cantor Fitzgerald International v Callaghan [1999] IRLR 234
a) What was the employer reason?
• s.92 - right to a written statement from the employer of the reason(s) for dismissal • If the employer fails to give a statement within 14 days of the request, the tribunal can: • (i) make a declaration as to what the reason for the dismissal is; and • (ii) make an award of two weeks pay. • Abernethy v Mott, Hay and Anderson [1974] IRLR 213 • "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee"