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What are the types of dismissal an employee can claim?



What do you do in the exam?

Go through unfair and wrongful dismissal and advise the best route


What are the elements of wrongful dismissal?

1) employee has been dismissed
2) the employer is somehow in breach on contract e.g. breach of a notice term
3) the court must decide if the employer has breached this term
4) damages is available if there is a breach and the employee has suffered loss as a consequence

- fairness is not an issue
- no continuity of service required (this is because it is a contractual right)


When is dismissal without notice committed?

If the employee has committed a repudiatory breach
If there is a PILON clause


what is a PILON clause?

A payment in lieu without notice clause, this avoids a wrongful dismissal claim. The contract is terminated immediately but they employee is pad for the notice period they should have had


What happens in the employee commits a repudiatory breach?

the employer can accept the breach and dismiss the employee or affirm the contract (i.e. carry on)


Elements for unfair dismissal...

1) Employee must have been dismissed under s96 and s136(1)
2) They must not be excluded from their right to claim
3) There must not be a 'fair reason'
4) Dismissal must have been unreasonable
5) Dismissal procedure must have been carried out improperly
6) must not fall within the category of being automatically unfair
7) remedies (didn't do on course)


if you have a large salary what route will you take and why

people with 80k+ salary will go through wrongful dismissal because unfair dismissal is capped at around 80k


Differences between wrongful and unfair dismissal....

1) fairness not looked at in WD
2) in WD they can take in facts discovered after the dismissal to support the employers defence

3) no requirement for CE in WD


Case relating to WD and finding information after the dismissal...

Williams v Leeds United FC - during the notice period it was found C had been using the work email inappropriately. This was a sufficient breach of implied term of trust and confidence so he was dismissed without notice.


Who can file for a UDC?

Employees only - s94(1)
They must have 2 years CE at the time of EDT - S108


When will someone lose their right to claim?

if the employment contract is illegal (i.e. where the employer and employee collude to avoid tax)
If a settlement has already been reached
If the claim if out of time s111 (within 3 months of EDT)
Police and armed forces cannot


Summary of the relevant statutory provisions

S94 - an employee has the right to not be unfairly dismissed
s95 - statutory definition of dismissal
s97 - EDT
s98 - fairness of dismissal


summary of s95

1) employer dismissal employee
2) fixed term contract is not renewed
3) constructive dismissal


summary of s98(1)

for a dismissal to be fair an employer must show the employee was dismissed for one of the justified reasons in ss2 OR some other substantial reason


summary of s98(4)

range of reasonable responses test the courts consider if the employer acted reasonably and in accordance with equity to determine if the dismissal was fair or not


What is meant by 'in accordance with equity'

if other employees were dismissed/treated the same way


cases relating to fairness test s98(4) + ruling

Iceland Frozen Foods v Jones – a tribunal must not make a ruling based on their own decisions on if the dismissal was fair or not, they must decide if the employer acted reasonably in the circumstances.
Confirmed in Post office v Foley


Pros and cons of this test

- very wide scope offers protection to employers but not employees
- doesn't allow judges to include their idea of fairness, good because no discretion bad because less flexibility


Case related to dismissal for capability or qualifications (this includes poor performance)

Tayside Regional Council v McIntosh - mechanic fairly dismissed under s98(2)(a) after losing his driving license

Evans v Bury Football Club - fairly dismissed after the new owners wanted a qualified physio


Explain dismissals for conduct...

This can be a single act of gross misconduct or a serious of less serious ones that culminate in dismissal


what is a summary dismissal

dismissal without payment in lieu of notice


case related to an employee being fairly dismissed for conduct outside of work...

Singh v London County Bus Service - convicted of fraud outside of work but was dismissed, argued the dishonesty meant he couldn't be trusted with dealing money. Court agreed and he had been fairly dismissed


Examples of conduct dismissal...

- Theft
- Physical violence
- Persistent lateness
- Insubordination: there is a implied term that says employees must comply with reasonable instructions, if they do not this insubordination may result in fair dismissal for conduct. NB: if an employee won’t do something that is a conduct issue, if they cannot do something that is a capability issue. Tourette’s would be a capability issue.
- Alcohol/drugs: the NB above becomes relevant here. If you are an alcoholic and have lost the ability to chose this is a capability issue. If the incident is related to a bender then this is a conduct issue.
- Misuse of IT/social media
- Bullying


Fair reasons for dismissal...

capability/poor performance/lack of qualifications
statutory restriction


Explain dismissal for statutory restriction + case

very limited e.g. someone is dismissed because they do not have the correct working permit/driving license

Bouchaala v Trusthouse Forte Hotels Ltd – The tribunal found that a genuine mistaken belief that the employment of C was in breach of immigration rules was sufficient to justify dismissal.


Purpose of SOSR's

no statutory definition to give it a wide scope in catching dismissals that are fair


Examples of dismissals for SOSR's...

 Expiry of fixed term contracts
 Third party pressure: essentially a 3rd party is pressuring the employer to dismiss an employee e.g. Baby P case, pressure from the press to sack the head of child services. They did do this but didn’t do it properly therefore she was entitled to unfair dismissal.
 Refusal to accept changes to terms and conditions
 Personality clashes: this is not always accepted as a substantial reason
 Breakdown in trust and confidence: this needs to follow on from an event, e.g. making a bad judgement call rather than a conduct incident (a specific event). Judges scarcely allow judges to rely upon this to avoid employers exploiting it. If this has a low threshold employers would abuse it.
 Conflicts of interest


What do judges look at in deciding if the dismissal was fair under s98(4)...

o Investigating the situation,
o Consulting with the employee,
o Warning the employee of the risk of dismissal,
o Giving the employee the opportunity to state their case,
o Exploring the possibility of redeployment, and
o Balancing the needs of the employer and employee.


What do judges look at to determine if the dismissal for capability/poor performance (s98(2a) was fair (s98(4)?

o Whether the employee knew what was expected of them
o Did the employer take steps to minimise the risk of poor performance?
o Did the employer provide training and supervision?
o Whether it warned the employee of the consequences of failing to improve
o Whether it gave the employee a chance to improve, and, in some cases,
o Whether it considered alternative employment before dismissing.
o The employer should have made some steps to improve the performance e.g. supervision, training
o The employer must have explained the employee they are failing