#9714 - Unfair Dismissal Model Answer - Employment Law

STEP 3:

TIME LIMIT

• 3 months from EDT

STEP 5:

REASONABLENESS

• Question of fact for tribunal unless automatically unfair (see i-Tut notes)

• When considering fairness there is essentially two questions to be asked by the tribunal:

  • Should the employee have been dismissed for the reason relied on by the employer?; and

  • Was the procedure adopted by the employer prior to dismissal fair?

    • If the answer to either question is no then the dismissal is unfair

• In answering these questions we must query whether the employer acted reasonably by identifying the ‘band of reasonable responses’ before ascertaining whether the employer’s actions fell within this band by following the guidance in Iceland Frozen Foods

• It is important to remember that the question is whether the employer acted reasonably, and not whether the tribunal itself would have dismissed the employee

THE DISMISSAL

• In line with Iceland Frozen Foods we must determine the employer’s range of reasonable responses (RORR)

• The starting point is 98(4) – In determining whether the dismissal was unfair the tribunal must consider the following:

• Size and administrative resources of employer

  • Big employers should have proper policies & procedures/flexibility to accommodate staff – opposite for small employers where ET more sympathetic

  • E.g. “Given that the respondent has 400 employees and 25 stores across the UK, they should have substantial resources and a formal disciplinary procedure”

• Equity

  • Were others in similar situations treated in the same way?

• Substantial merits

  • Long serving

• Other circumstances

  • Fair procedure followed? (see below)

• Sufficiency of reason

  • Did the punishment fit the crime?

• Next the tribunal will look for the RORR expected of a reasonable employer as in Sainsbury’s Supermarket

  • Apply – were the investigations reasonable?, was the decision to dismiss reasonable? Etc.

• Finally the tribunal will determine whether the employer’s actions fall within the RORR

  • Here the question is not ‘would the tribunal have dismissed the claimant’? Instead it is ‘would the reasonable employer have dismissed the claimant’?

  • Apply

THE PROCEDURE

Different tests for different reasons for dismissal

• Conduct

  • BHS v Burchell – applicable where there is a suspicion of misconduct but they are not certain that the claimant did it

  • Is there a genuine belief in the claimant’s guilt

    • e.g. was the claimant working on all shifts when money went missing?

  • Are there reasonable grounds to base those beliefs

    • reason to disbelieve witnesses? How did the claimant react at interview?

  • Were proper investigations carried out?

    • Interviews, told in advance of meetings, ability to bring a representative etc.

• Capability

• Redundancy

• Illegality

• Some other substantial reason

  • See checklist

ACAS Code of Practice

• Did different people carry out the investigations?

• Did the employee have reasonable opportunity to ask questions? (note: no rule of law which obliges employer to give employee chance to cross examine the witness – Santamera case) (possible to have fair procedure where witness insists on anonymity because of a real fear of reprisal – Ramsey v Walkers Snack Foods)

• Were there any unreasonable delays?

• Was the claimant kept informed/given written notice?

• Previous warnings/appropriate warnings?

• Given right to be accompanied

• Set targets and given improvement period?

• Made clear in final warning that further breach will lead to dismissal?

CONCLUDE CHANCES OF SUCCESS