#15480 - Unfair Dismissal - Employment Law

Unfair Dismissal

• Statutory right not to be unfairly dismissed (s.94 ERA 1996) - available to employees only (s.230 ERA)

• Heard in Employment Tribunal only.

• Criteria:

  1. He was dismissed - s.95(1) ERA

     1. Express dismissal (with or without notice)

     2. Expiry of a fixed term contract without renewal on the same terms

     3. Constructive dismissal (fundamental breach of employment contract)

  1. He was employed for the qualifying period of service - s.108(1) ERA

     • One year (employment began before 6 April 2012) or two years’ (employment began after 6 April 2012) continuous employment with the employer in question.

       • Automatically unfair if connected with pregnancy, maternity, paternity leave; health & safety complaints; dismissals relating to enforcement of the Working Time Regs, etc (no qualifying period)

       • Cf. dismissed as a result of TUPE transfer or spent conviction = automatically unfair but still need qualifying period of service.

  1. Within the limitation period: 3 months from effective date of termination subject to ACAS mandatory early conciliation.

     • EDT: s.97 ERA -

       • employee’s notice of dismissal expires (where they are given notice);

       • the dismissal takes effect if he is dismissed without notice; or

       • a fixed term contract expires without being renewed.

     • Statutory extension: s.97(2) ERA operates to extend the employee's EDT by their s.86 ERA statutory minimum notice.

       • s.97(2) ERA also applies when calculating the basic award for unfair dismissal where the employer has not provided sufficient notice under s.86. Tribunal will add the SMN on to the date the employee was dismissed, thus extending the EDT. This may impact on the number of completed years of service and increase the basic award.

     • s. 145(5) ERA operates in a similar way with regard to redundancy.

     • General discretion to extend: if not reasonably practicable (s.111(2) ERA)

  1. Not excluded: e.g. police or armed forces

  2. Burden on employer to show:

     1. Potentially fair reason for dismissal

        • Capability - incompetence or incapability/unable to do the job properly due to qualifications, ill-health, incompetence - s.98(2)(a)

        • Conduct - disobedience; abusiveness; theft; drunk at work; persistent lateness; dishonesty, need not be gross misconduct - s.98(2)(b)

• Redundancy - s.98(2)(c) if statutory definition = s.139(1) ERA:

  1. business is shut down altogether;

place of business where the employee works is shut down; or

• Problems re: mobility clauses. Terms (if any) which make provision for the employee to be transferred to another place are not to be taken into account.

2. reduction in the need for employees of particular kind.

   • Entitled to statutory redundancy payment provided continually employed for at least 2 years. Calculated same way as basic award.

   • Murray v Foyle Meats: only question = whether or not reduction in work resulted in the dismissal.

   • No claim provided:

     1. Correct payment made

     2. Proper procedure followed & employer acted reasonably (consider: employer’s reasons, consultation of employer with employees, selection process - objective criteria, possibility of offering alternative employment, if employees can appeal).

• Statutory illegality - s.98(2)(d) - e.g. work permit expires.

• Some other substantial reason - s.98(1)(b): this is really a catch-all category (e.g. where ETO reason for dismissal on a TUPE transfer, or employee refuses to consent to change of employment terms)

2. Reason fair in all the circumstances: s.98(4) ERA

   • Conduct dismissals - procedure:

     • Consider whether both the employer’s disciplinary procedure and the ACAS Code of Practice 1 have been followed.

     • Code: (1) establish facts, (2) inform employee, (3) hold meeting, (4) allow employee to be accompanied, (5) decide appropriate action, (6) provide opportunity to appeal.

     • British Homes Stores Ltd v Burchell Guidelines:

       1. Employer must have honest belief in employee's guilt;

       2. Employer must have reasonable grounds for belief;

       3. Reasonable grounds based on reasonable investigation.

     • Was dismissal appropriate?

       • Post Office v Foley and Midland Bank plc v Madden: decision within the band of reasonable responses open to the employer, considering its size and resources available. Applies to procedural process AND decision to dismiss. (could also include employee's length of service, disciplinary record and consistency of treatment)

• Capability dismissals - procedure:

  • Again, consider whether both the employer’s disciplinary procedure and the ACAS Code of Practice 1 have been followed, including the six 'keys'.

  • Must show that employee knew what was required of them and fell short.

  • Incompetence Procedure: (1) appraise, (2) warn, (3) give reasonable opportunity to improve, (4) repeat warning at least one, (5) consider alternative employment + Burchell Guidelines

  • Genuine Ill-health: ACAS Code does not apply.

    • East Lindsey District Council v Daubney: must establish true medical position and consult with employee. Consider: past record, likely duration, employee's status, consistency of treatment and alternative employment.

    • NB. Equality Act 2010 anti-discrimination provisions.

    • Follow Burchell Guidelines.

• Redundancy dismissals - procedure:

  • ACAS Code does not apply.

  • Fewer than 20 employees to be dismissed in 90 days or less = individual consultation (no statutory right to accompaniment)

    • Individual: (1) plan, (2) identify pool for selection, (3) invite voluntary redundancies, (4) identify selection criteria (score sheet - NB. Protected rights), (5) consult, (6) obliged to consider suitable alternative employment - employee may lose right to redundancy payment for unreasonable refusal - s.141(1) & (4) ERA, (7) trial period for new employment - either can terminate (s.138(2)(b) ERA), (8) send out dismissal notices, (9) allow appeals.

  • 20 or more employees to be dismissed in 90 days or less = individual AND collective consultation.

    • Collective - s.188 TULRCA 1992: (1) consult with appropriate representatives "in good time", (2) provide representatives with info in s.188(4), (3) notify Department of Business Innovation and Skills (at least 30/45 days notice) - failure = criminal offence.

      • Failure = ET can make a protective award - s.189 (to punish employers - max 90 days pay, no cap)

      • One establishment = USDAW v Ethel Austin: interpreted as treating the local unit or entity to which the redundant workers are assigned to as one establishment.

• Public Interest Disclosures (Whistleblowing)

  • Dismissal (including constructive and redundancy) = automatically unfair if principally due to (causation) making a protected disclosure (s.103A ERA)

    1. Qualifying disclosure

       • Wide definition: whether in writing or verbal, new information or drawing attention to matters people are already aware of (s.43L(3) ERA) - must actually convey facts (not allege or state opinions).

    2. Subject matter

       • Must in the reasonable belief of worker tend to show that one of following has occurred, is occurring, or is likely to occur (s.43B(1) ERA):

         • Criminal offence

         • Breach of legal obligation

         • Miscarriage of justice

         • Danger to health and safety

         • Damage to environment

         • Deliberate concealment of information about any of the above

       • Disclosure made on or after 25 June 2013 will only be a qualifying disclosure if the worker reasonably believes that the disclosure is "in the public interest".

         • Chesterton Global: relatively small group (here 100 senior managers) may be enough to satisfy the public interest test.

    3. To whom?

       • Internal: qualifying disclosure to the employer is a protected disclosure (s.43C(1) ERA)

       • External: (ss.43D-43H ERA)

         • Where third party responsible

         • Reporting to prescribed persons (prescribed by government)

         • Government minister (if employee under statute)

         • Legal advisers

         • Wider disclosure (if info substantially true and whistle-blower not acting for personal gain + matter exceptionally serious)

    4. No qualifying minimum period of service + no cap on award

• Other Statutory Rights

  • Right to written statement of reasons for dismissal: s.92 ERA

    • Need sufficient continuous employment.

    • Request within 3 months of EDT

    • Employer has 14 days to respond.

    • Remedy: complain to Tribunal

      • Tribunal can make a declaration of employer’s ‘real’ reasons for dismissing and award employee two weeks’ pay (uncapped) (s.93 ERA)

  • Right to be accompanied to disciplinary/grievance meeting: s.10 & s.11 ERelA 1999

    • Union rep or work colleague (otherwise, employer can generally refuse)

    • Failure to comply = ET can order the employer to pay compensation of two weeks’ pay.

    • "Disciplinary hearing" includes an appeal hearing (s.13(4)(c) ERelA 1999).