Unfair Dismissal

• Unfair dismissal


  Statutory right of an employee not to be unfairly dismissed by their employer
• Who the right of unfair dismissal applies to

  • Individuals who are 'employees' (not independent contractors)
  • Employees who have at least 2 years continuous employment (with some exceptions)
• Qualification for the right of unfair dismissal

  1. Continuous employment of at least 2 years (since April 2012)

  2. Not 'contracted out' of the right

  3. Not in an 'excluded' class of employees

  4. Not an 'illegal' contract
• Dismissal


  Termination of employment by the employer, end of a fixed-term contract, or resignation by the employee
• Five 'fair' reasons for dismissal

  • Capability
  • Conduct
  • Redundancy
  • Statutory illegality
  • Some other substantial reason
• Capability as a fair reason for dismissal

  • Employee was incapable of doing the job due to qualifications, incompetence, or illness
• Conduct as a fair reason for dismissal


  • Examples include disobeying orders, insubordination, theft, drunkenness, assault
• Redundancy as a fair reason for dismissal

  • Dismissal is truly for reasons of redundancy and correct redundancy procedure is followed
• 'Contravention of an Enactment' as a fair reason for dismissal


  • Continuing to employ the person would breach the law
• 'Some other substantial reason' as a fair reason for dismissal


  • Includes business reorganisations, refusal to accept restraint of trade, hidden medical problems, employee's conduct injuring the business
• Automatically unfair reasons for dismissal

  • Dismissal for pregnancy, childbirth, maternity, paternity, adoption, or caring for dependents
  • Dismissal relating to trade union membership or activity
  • Dismissal for whistleblowing
  • Dismissal for asserting other statutory employment rights
• Procedural fairness in unfair dismissal

  • Employer must act reasonably and fairly in handling the dismissal
  • Compliance with ACAS Code of Practice is important
  • Employer must establish the facts, inform the employee, hold a meeting, allow representation, decide on appropriate action, inform of appeal rights
• Employer fails to follow their own procedures when dismissing an employee


  This can still be considered unfair dismissal even if the employer would have dismissed the employee anyway
• 'Range of reasonable responses' test

  • Tribunal considers whether the employer's decision to dismiss fell within the range of responses a reasonable employer might have taken
  • Tribunal should not substitute its own decision for that of the employer
• Burchell principles for 'conduct' dismissals

  • Employer must show an honest belief in misconduct, reasonable grounds for that belief, and a reasonable investigation
• Frozen Food v Jones [1983]: 'the function of the [ET] is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair'
• Reasonable Response


  The decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted
• There was some debate about whether this was the correct test for a tribunal to apply when considering the fairness of a decision by an employer to dismiss an employee


  However, it is now generally accepted to be correct
• Procedural Fairness (for 'Conduct')


  It must be established by the employer the fact of an honest belief; Reasonable grounds upon which to sustain that belief; Employer can demonstrate that they carried out as much investigation as was reasonable in circumstances of the case
• Provided the dismissal is dealt with fairly the employer is not expected to launch into a criminal investigation – conclusive proof is not necessary
• Other matters which may also be considered

  • Employee's disciplinary record
  • Employee's length of service
  • Adhere to the terms of any contract
• Burchell Principles


  The principles established in British Home Stores v Burchell [1980]
• Polkey Reduction


  If the procedural failure affected the employer's knowledge e.g. they had not investigated properly, then the employer's decision to dismiss could be considered 'unreasonable'. If further investigation could have revealed the employee did commit the offence a court might hold it to be 'technically' unfair but take this into account when setting the level of remedy to be awarded
• Claim Procedure for Unfair Dismissal

  1. Cases for unfair dismissal should be issued by the employee in ET (Employment Tribunal) within 3 months

  2. Claim made in writing in the prescribed form ('ET1') - can be in hard copy or online

  3. Employer must respond via an ET3 within the required time limit
• Tribunal fees were introduced for issuing and hearing a claim in the ET (different fees depending on whether a type 'A' or type 'B' claim)
• Early conciliation was also introduced at the same time
• The changes were designed to reduce the number of claims reaching ET
• Supreme Court decision July 2017 removed tribunal fees in the ET system following landmark victory
• Government refunding ET fees paid - huge number of applications
• What about those employees whose ET cases were out of time but who would have brought a claim had the fees regime not been in place?
• Three elements to prove in an unfair dismissal claim

  • Dismissed?
  • (Fair) reason for the dismissal?
  • Was the procedure by which the dismissal was conducted fair?
• Settlement Agreement


  Legally achieved settlement of employment claims
• COT3


  Legally achieved settlement of employment claims via ACAS
• Three possible remedies for a successful unfair dismissal claim

  • Re-instatement
  • Re-engagement
  • Compensation
• Reinstatement


  Where this is ordered an employee is entitled to return to their old job
• Re-engagement


  An employee can return to their old employer – but in a new job
• Basic Award


  There is a specific formula which is used to calculate this based on the employee's age, length of service and weekly pay. Capped at an amount set by the government annually
• Compensatory Award


  Such amount as ET considers 'just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal'. Aim is to reimburse the employee not punish the employer
• Possible heads of loss for Compensatory Award

  • Immediate loss of wages
  • Manner of dismissal
  • Future loss of wages
  • Loss of protection (in respect of unfair dismissal & redundancy rights)
• Appeals for Unfair Dismissal

  1. Appeals are to the EAT (on a point of law) – must be within the time limit

  2. Appeals from the EAT go to the Court of Appeal

  3. Further appeal then lies with the Supreme Court