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#13960 - Unfair Dismissal - Employment Law

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  • Eligibility

    • burden of proof on employee

    • 3 months (-1 day) from day of termination (EDT)

    • 2 years of service for those employed on/after 6th April 2012; 1 year for others

    • not in an excluded class

  • Dismissal

    • burden of proof on employee

    • non-renewal of fixed-term contract after expiry

    • actual dismissal

    • constructive dismissal

  • Reason for Dismissal (ERA 1996, s98 (2))

    • burden of proof on employer

    • what is the reason

    • is it one of the 5 potentially fair reasons

  • Fairness of Dismissal (ERA 1996, s98 (4))

    • test – range of reasonable responses

    • employer size and resources

    • equity

    • sufficiency of reason employer has given

    • substantial merits

    • procedure

    • ACAS code of conduct

  • Remedies

    • reinstatement / reengagement (re-hired either in same position or company)

    • compensation

      • basic: age factor (/1/1) x gross weekly pay (max 464 from 6th April 2014) x number of complete years in service (max 20) – (EA 2002, s38)

      • compensatory: immediate loss of net earnings, future losses incl. pension, mitigation, other deductions (max 76,574 from 6th April 2014)

      • basic/compensatory award can be increased or decreased by up to 25% for unreasonable failure to follow ACAS Code

  • Other Claims

    • consider redundancy payment, wrongful dismissal, discrimination

    • but employee cannot be compensated twice for the same loss

STATE THE CLAIM BEING MADE – Unfair Dismissal

Every employee has the right not to be unfairly dismissed by his employer (s 94 ERA 1996)

CLAIM & LIMITATION

The claim must be made within 3 months of the Effective Date of Termination EDT) (s.111)- or within such time as the Tribunal considers reasonably practicable for the complaint to be presented.

This may be extended;

  • If the applicant has reasonable excuse, OR

  • By the statutory minimum period of notice (s.97(2)).

  • The time limit is [date] (Gisda Cyf v Barratt) which is three months less a day (Pacitti Jones v O’Brien).

  • The time limit can be extended because of early conciliation notification requirement to ACAS and compulsory since May 2014.

  • When claimant contacts ACAS, this will immediately pause the time limit for presenting the claim.

  • [Claimant] has made an early conciliation application which did not work out [see statement details].

Simon Boyle has complied for the time limit requirement.
Eligibility test

  • Be an employee

  • Have been dismissed

  • Have requisite period of employment

  • Not be within an excluded class
MUST BE AN EMPLOYEE

  • [Claimant] has to prove he is eligible.

  • An employee is defined as: ‘an individual who…works under…a contract of employment’ (s.230(1) ERA 1996)

  • The court held in Ready Mixed Concrete (South East) Ltd v Minister for Pensions and National Insurance (1968) that a contract of service existed where;

  1. The employee must be under an obligation to perform the contract personally.

  • They will use their own work and skill.

  1. There must be mutuality of obligations between employer and employee.

    • An ‘irreducible minimum obligation on behalf of the parties’

    • The employer must be under an obligation to offer the employee work and if offered the employment the employee must be under a duty to accept the work

  2. The employee must have agreed to be subject to the control of the employer, such as

  • Hours of work/place of work/duties to be performed

    • Other provisions may be important in the overall picture and may have a greater or lesser effect on a case-by-case basis, such as;

  • Who pays the tax/NI?

  • Who provides the tools and equipment?

  • How is the individual paid for sickness/holiday? Pensions?

  • Is the individual subject to the employer’s disciplinary and grievance procedure?

  • How did the parties view the relationship at the outset?
WHO HAS THE REQUISITE PERIOD OF EMPLOYMENT

  • 1 year = 12 calendar months if employed before 6 April 2012

  • 2 years = employed after 6 April 2012 (s 108(1) ERA 1996)

  • EDT is defined at ss 97 & 145 ERA 1996 for an employee whose contract is terminated without notice as the date on which the termination takes effect. Even though there may be a dismissal letter, the contract ceased to have effect on the date employee learned of the dismissal.

  • Because he started employments [before/after] 6 April 2012, he only needs [[1] / [2] years of continuous service]

  • Usually working ‘continuously’ for the same employer (s 210(5) ERA 1996) even if illness, temporary cessation of work, industrial action

  • The one year is measured from the EDT (ss 97 & 145 ERA 1996)

  • If by notice then from date notice expires

  • If without notice then from date of termination

  • If fixed-term/specific task then from expiry of contract

NB if the employee is dismissed without notice but given wages in lieu, the EDT is still the date the employee was told to go.

NB2 With a constructive dismissal, the EDT is the date of departure-which is then to be the employee’s acceptance of the repudiation/fundamental breach.

  • The EDT can be extended in special circumstances;

  • For an employee who has a statutory minimum period of notice under s.86 ERA 1996. If they are dismissed without notice (or reduced notice) then they may extend the EDT by the statutory minimum notice period.

  • For an employee claiming constructive dismissal, they may add the statutory notice period to the date the employee gave notice (s.97(4))

  • NB this only applies for cases where unfair dismissal is claimed.
EXCLUDED CLASSES

  • Armed forces

  • Police officer

  • Share fishermen (paid a share of the profits of the earnings of the vessel)

  • Employees knowingly working under illegal contracts.
PRECEDENT

  • [NAME] is an employee as they have an [employment contract/s.1 statement] (s.230(1)).

  • [he/she] has the requisite period of continuous employment as [NAME] commenced work [YEARS (check his dates for the new rule of 2 years)] ago.

  • [NAME] is not part of an excluded class.

  • [NAME]’s employment was terminated on [DATE] therefore [he/she] would have to bring claim within 3 months (less one day) by midnight [DATE]. (s.111 ERA 1996)’
WHO HAS BEEN DISMISSED

[Claimant] has to prove the dismissal.

Under s.95(1) ERA 1996 which covers;

  • ACTUAL DISMISSAL (whether with or without notice (s 95(1)(a) and s 136(1)(a) ERA 1996))

On the facts, [EMPLOYEE] was [DIMISSAL] therefore he has been actually dismissed without notice (s.95(1)).

  • General exhortation ‘if you don’t like the job, you can f**** off’ (Futty V Brekkes (D&D) Ltd) was not a dismissal

OR

  • FIXED-TERM CONTRACTS TERMINATION and NON-RENEWAL

OR

  • LIMITED TERM CONTRACT EXPIRY AND NON-RENEWAL

OR

  • CONSTRUCTIVE DISMISSAL – repudiatory breach by Employer which Employee accepts and in response to which Employee resigns within a reasonable time (if not, deemed to have ‘waived’ breach)(Western Excavating) under s 95(1)(c) ERA 1996

  • Includes ‘last straw’ doctrine – accumulation of breaches (Abbey National v Robinson)

‘On the facts, [EMPLOYER] has…

(check any clauses for guidance on whether it could be argued that the reason is ok)

  • Reduction in salary (express term of contract

  • Change in job description (helpline worker now not a trainer, differences in the jobs i.e. no more face-to-face customer contact)

  • Change of contractual hours (does contract permit this) (Temp change not perm) (unsocial hours – 7pm finish)

  • Removal of a bonus

  • Transferring power to another on a permanent basis when employee is away is a breach of the implied term of trust and confidence

  • Not receiving a pay rise when all his colleagues have – breach of the implied duty of trust and confidence

This is a repudiatory (not minor) breach of [express or implied] terms of the contract which will entitle [EMPLOYEE] to resign (without or without notice) and discharge the contract for constructive dismissal (Western Excavating).

[EMPLOYEE] has a good chance despite it being difficult to prove. [EMPLOYEE] [DID/MUST] resign within a reasonable time of the breach [DATE EXAMPLE].

  • Minor breaches wont justify a resignation unless ‘last straw’, which is the last of many minor breaches, resignation may be justified as employers conduct is looked at as a whole (Abbey National v Robinson)

NB not resignation/mutual agreement/having their contract frustrated.
ACAS procedure

Where an employee intends to rely on s 95(1)(c) of the ERA 1996 – constructive dismissal –

• Let the employer know the nature of the grievance.

• Hold a meeting with the employee to discuss the grievance.

• Allow the employee to be accompanied at the meeting.

• Decide on appropriate action.

• Allow the employee to take the grievance further if not resolved.

• Overlapping grievance and disciplinary cases: where an employee raises a grievance during a disciplinary process, the disciplinary process may be suspended temporarily in order to deal with the grievance. Where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently.

‘The burden of proof is on [EMPLOYER] to show that the reason for the dismissal was fair…’

An employer may be justified in dismissing an employee for the substantive reason, but the dismissal may still be unfair if there are procedural defects.

Under s 98(2)[ ], an employer may dismiss an employee for reasons that relate to [state the reason].

The five permitted reasons under s 98(2) ERA 1996 must relate to:

  • the employee’s capability or qualifications to do the work they were employed to do;

  • the employee’s conduct;

  • the fact that the employee is redundant;

  • the fact that the employee could...

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