#10068 - Unfair Dismissal Sheet - BPC Employment Law

UNFAIR DISMISSAL SHEET

NOTICE PERIOD

1. Where contract doesn’t stipulate a notice period, then at common law ‘reasonable’ notice must be given

2. Reasonable notice based on status, length of service of the employee, custom and trade and any other relevant factors

3. WHERE CONSTRUCTIVE DISMISSAL: employee has to give at least a week’s notice

ELIGIBILITY

1. Needs to be an employee with at least 2 years continuous employment where the date of commencement is on or after 6 April 2012; one year before then

2. Employee is they work under a contract of employment

3. Can claim even if over 65 and no minimum age

4. Excluded jobs p.120 (v. unlikely to be relevant)

CONTINUITY

1. Presumption that continuity of employment exists until employer proves to the contrary

2. P. 121 City

3. A gap of a week or more will suffice where the contract of employment no longer subsists

4. SICKNESS – first 26 weeks of sickness count towards continuity

DISMISSAL

1. There must have been a dismissal, meaning:

1. termination by employer, with/without notice

2. expiry of a fixed-term contract without renewal

3. constructive dismissal

2. A pressured resignation counts as a dismissal where there was no choice (p.127)

3. Can have a variation of the notice period (p.126)

4. Heat of the moment dismissal, whether with or without notice (p. 126)

5. G

CONSTRUCTIVE DISMISSAL

1. p. 127 City

2. where employer has performed a repudiatory breach of contract, which entitles the employee to end the contract and to be treated as if dismissed

3. Whether conduct complained of is a repudiatory breach is to be judged as an objective test

4. Employer will argue there was no dismissal and if there was, it was reasonable and fair

5. Continuing to work might mean waiving the breach

6. EXAMPLES:

1. change in employment terms (refusing new contract terms p.129)

2. failure to follow a contractually binding disciplinary procedure

3. Can include breach of implied term of mutual trust and confidence

4. ‘Last straw doctrine’ where there has been a series of breaches which taken together constitute a fundamental breach

5. If the employment tribunal find that there was a constructive dismissal, they then need to decide if the reason for the dismissal was fair and a sufficient reason in the circumstances

6. If it wasn’t a constructive dismissal it was a resignation so not an unfair dismissal (p.130)

EDT

1. p. 131

REASON FOR THE DISMISSAL

1. p.133

2. Employer has the onus of proving the (principal) reason for the dismissal and that it falls within one of the categories of potentially fair dismissals

3. The reason has to be those that are uppermost in the employer’s mind

4. Employee is entitled to a written statement of reasons for the dismissal within 14 days on request

5. POTENTIALLY FAIR DISMISSALS p. 134

• tribunal will thinking did the employer act reasonably in treating it as sufficient reason for dismissing the employee

• Was the employer’s decision to dismiss within a ‘band of reasonableness’

• This applies to the reasonableness...