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Unfair Dismissal
Must be an “employee”
Qualify for the right
Dismissed within s95
Fair reason s98 and/ or
Reasonable in the circumstances
Fair procedure
Remedy
Three elements to prove:
1
...
What was the true reason for the dismissal? (for employer to establish)
3
...
Maternity leave or holiday
o Industrial action work doesn’t break but doesn’t count towards it
...

Contracted out of right:
o Settlement reached via ACAS (COT3)
o Settlement Agreement (Sec 203 ERA 1996)
o ‘Employee Shareholders’ (Sec 205A & 104G ERA 1996)

Automatically unfair reasons - including but not limited to…
- Dismissal on grounds of sex or race
- Dismissal for pregnancy
- Dismissal relating to Trade Union activities s238A
- Dismissal relating to health and safety complaints
- Dismissal for ‘whistle-blowing’

Dismissed
- Express
- Constructive (s95 ERA 1996)
o Conduct by employer which entitles employee to resign & claim UD
o “Constructive” in sense that there is not a direct dismissal but the
“dismissal” is “constructed” out of employer’s actions
o Western Excavating v Sharp [1978] sets out 3-part test:
1
...

2
...
Resignation must be obviously linked to employer’s conduct
o Woods v WM Car Service (Peterborough) Ltd [1971]
 Breach implied term of trust & confidence will repudiate contract
but employer’s conduct must amount to fundamental breach
Type of dismissal
- ‘You are finished’ – constructive dismissal
o Wilson v Fletcher
 Heat of the moment
...

o Tanner v Keen
 Looks at words used
...

- Circumstances of dismissal
o Not during working environment
 Can still be dismissal if outside of work
o Breach of mutual trust as yelling at her in a public place
...
Compensation to pay for a flat
...

o Employer has 14 days from request made to give one
o If complaint’s well-founded, tribunal may make declaration to findings &
order employee receives 2 weeks pay
...

o Anglian Homes v Kelly
Easy if criminal, eg
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o Bonus: Question whether they have disability under EqA 2010
N
...
excessive absence may stray between ‘capability’ & ‘conduct’

Redundancy (s139)
Statutory illegality
- To continue to employ the person would have breached the law
o E
...
He has no work permit
o E
...
He is a taxi driver and loses his licence
Some other substantial reason s98(1)(b) (SOSR)
- S98(1)(b) gives tribunals discretion to accept other fair reasons
- ‘catch-all’ category - will always be new examples of situations where Tribunal
will accept SOSR as valid & fair reason for dismissal
- A refusal to accept imposition of a restraint of trade clause
- Discovery of hidden medical problems
- Where there’s a sound business reason
o Hounslow LBC v Klusova
o eg
...
Seniority & work record

Fair procedure s98(4) (Manner of Dismissal)
Polkey v Dayton Services 1987
- HoL held ‘procedural correctness’ lay at heart of UD
...

1
...

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Did employer adopt a reasonable & fair procedure?
Was decision to dismiss a reasonable response by employer to situation?
ACAS Code of Practice on Disciplinary & Grievance Procedures 2009
No longer binding legal force but s207A Trade Union & Labour Relations
(Consolidation) Act 1992 (TULRCA) allows Tribunals to adjust awards by
25% for an unreasonable failure to comply with the Code
...

 s10 Employment Relations Act 1999 provides this right &
doesn’t require worker’s choice of companion be reasonable
...

 Conclusive proof is not necessary
 If dealt with fairly employer not expected to launch a criminal
investigation
Consider adherence to contractual terms, consistency of approach, length of
service, disciplinary record, proper hearing & alternative’s to dismissal
...

ACAS have introduced Code of Practice for Employers on settlement
...

S18(4) Employment Tribunal Act 1996 (ETA) Officer must encourage
reinstatement/reengagement
...

Conciliated settlement is binding even if not in writing
...

o Can complain prior to EDT so long as after notice has been given
...

 Reasonably capable of being physically done:
 Palmer v Southend BC
 Includes ignorance or mistaken belief when reasonable

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 Wall’s Meat Co v Khan
 Includes late knowledge dismissal was unfair
 Churchill v Yeates (made redundant, then replaced)
o Tribunal strict in enforcing limit as UD provisions in force since 1972
Claim made in writing in prescribed form (‘ET1’)
Employer’s response in writing on an ET3 within required time limit
For first time, fees have now been introduced when claims are issued in ET
(see notes – Type ‘A’ or ‘B’)
Early conciliation has also been introduced under the ERRA 2013

Remedies
- Re-instatement or re-engagement (ERA 1996 Sec 113)
o Reinstatement – as if never was dismissed
o Re-engagement – rehire in new role
o Where terms aren’t fully complied with, s117(s) ERA requires tribunal to
make additional compensation as tribunal sees fit
...

-

Compensation (ERA 1996 Sec 117-126) includes
o a Basic award (calculated in same way as redundancy) AND
o Where dismissal reason is related to union membership or health &
safety there’s a minimum award of £5676 in 2014
o Basic can be reduced by tribunal on grounds of:
 Unreasonable refusal of reinstatement
 Conduct of employee prior to dismissal or notice
...

 Employee must attempt to look for other work
...

o Specific formula is used to calculate basic award based on employee’s
age, length of service & weekly pay but capped
o Aim is to reimburse employee, not punish employer however:
o S12 ETA- Tribunal can impose financial penalty where breached rights
have ‘one or more aggravating features
...

o Loss includes
 Incurred up until hearing date
 Loss of earning
 S123(2) loss of benefits
 Loss from manner of dismissal?
 Made individual less acceptable to other employers
 No non-economic loss eg
...


Unduly burdensome?
-

More burdensome on smaller companies than larger
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Addresses imbalance of power between employer & employee
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Wrongful Dismissal
A common law claim for damages against employer if employer terminates the
employment in breach of contract
...

Dismissal without notice or inadequate notice where proper notice should have been
given is likely circumstances
...

Fixed term contract for a year & is terminated after 3 months, claim COULD be
damages for remainder of fixed term I
...
9 months
...


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WD requires breach of express or implied term of contract & therefore ‘form’
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At common law (WD), employer can dismiss employee for any reason so long
as given proper notice (or wages in lieu of), but in UD, ‘notice’ is only of
evidential value & fact that notice was given doesn’t mean dismissal was
necessarily fair
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No limit that court can award to employee for WD but capped at £25,000 in
tribunal
...

WD can make several claims of compensation for employment benefits in
addition to notice pay
...

UD employee needs 2 years continuous service to claim but WD can be
claimed after one month
Having choice WD & UD, employees have more options & greater availability
of gaining compensation
...

UD is now far more important in practice because:
- Easier procedure
- Possibility of re-instatement or re-engagement & more realistic approach to
compensation
...
Also, for highly paid employee or entitled to substantial notice
...

Providing a ‘cost’ to employers for UD was intended to bring cultural reform of work
places so dismissals arose through correct procedure & resulted in fairer outcomes
...
Traditions of common law thinking have
influenced and moulded the shape of much of the new statutory regime

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