Topic 5: Job Security and business reorganisations COPY COPY

Question 1

BHS v Burchell

Answer 1

Misconduct case: RIB

• Laid down the basic test for misconduct cases.
• The employer must have reasonable suspicion amounting to a believe in the guilt of the employee in the misconduct at the time of dismissal
• It is not a subjective whim, but reasonable suspicion amounting to belief.

To show that the dismissal was fair there are three elements:

1. employer must have belief in the guilt of the employee
2. reasonable grounds to sustain that belief
3. the employer must have carried out as much invesitgation as is reasonable in the case to form the belief.

There must be: reasonableness in suspicion and reasonableness in investigation.

Having done this, it can then be decided whether the employer has reasonably dismissed an employee.

Question 2

Sandhu

Answer 2

Appellant called to disciplinary meeting and told that he would be dismissed for misconduct. He negotiated a retirement package and left on its terms. The Tribunal found that he had left voluntarily and was not dismissed.
Held that the Tribunal was entitled, having asked the correct question – which caused him to leave – to find that he had left because of the package

Question 3

Is redundancy a potentially fair reason under unfair dismissal law?

Answer 3

yes

Question 4

What is dismissal in the context of an EA 2010 claim?

Answer 4

• Brought by an employee (as defined in the EA).

If dimissal is discriminatiory and arises from prohibited conduct because of a PC = s39.

There is no continuity rules or formal ceiling on damages s124.

Question 5

With Resignation, can the contract provide a longer period of notice?

Answer 5

in the case of workers the notice period if always determined by the contract.

Question 6

Pay v Lancashire

Answer 6

activities outside work – proportionality test under HRA may be applied.

probation officer who worked with sex offenders and their victims. He was dismissed because employer was concerned yhat in his own time, he was interested in sadomasicatistic things.

Employee’s argument: freedom of expression,

Proportionality was considered because there was a link to the human rights act. But ultimately found to be a fair dismissal, because court put together the proportionality and reasonable responses test.

Question 7

Martin v MBS

CA

Answer 7

the burden of proof is on the employee to show there has been a dismissal.

“Whatever the respective actions of the employer and employee at the time of termination, the question always remains ‘who really terminated the contract of employment?’”

• If there is such as a big argument, one party says you are fire, another says you resign. In this situation, the test is: This will be a finding of fact by the tribunal

Question 8

Cockram

Answer 8

if the employee gives longer than the normal contractual notice period this is affirmation of the breach.

Question 9

Brown

Answer 9

use of league tables - requirement of transparency use of league tables should be based on objective criteria.

Question 10

Ssekisonge

Answer 10

​Potentially fair reason: SOSR

Uncertainty over the claimant’s identity was an SOSR for dismissal was found to be an SOSR.

Immigration status for employment and uncertainty over claimant’s identify and they were dismissed for this reason (did not know correct identify). Held: SOSR reason.

Question 11

Polkey v Dayton

House of lords

“polkey guidance”

Answer 11

The procedure all turns on the reasonableness test: if other employers would have dismimssed the individual without conducting any kind of procedure, then it may be within the band of reasonable responses to do so. However, the ACAS Code discourages this,

The reasonableness of the dismissal is based on a test of substantive fairness. However, the test in ERA s98(4) also encompasses procedural fairness i.e. the employer should follow reasonable procedural steps prior to making a dismissal. The requirement of a fair procedure accords with ‘equity’ and natural justice:

• adherence to proper procedures is an essential requirement of fairness – is within the band of reasonable responses

If there is a serious violation of procedures (employer not following their own procedures ) the ACAS Code of Practise can give ET power to raise awards by no more than 25%

Question 12

Yetton

Answer 12

Wrongful dismissal

Mitigation - a successful claimant must mitigate his/her loss, for example, by looking for alternative employment

• failure to mitigate loss may lead to reduction in award of damages.
• Question of fact by ET or court to ask what a reasonable job for the employee to take based on their status.

Question 13

Constructive dismissal

Answer 13

Involves a fundamental breach of the terms of the contract such that the employee can regard that as justifying them as resigning and bringing a claim for US.

Question 14

Nolan

Answer 14

Redundancy

what is ‘work of a particular kind’?

• dismissal for refusing to work new shift system – not redundancy, no diminution of requirements for the employees’ work – job function test

Question 15

Gibbs v Leeds

Answer 15

employee expressed willingness to negotiate consensual termination – had been a repudiatory breach by employer – employee could still resign and claim unfair dismissal.

Question 16

Express Medicals v O’Donnell

Answer 16

breach of procedure must be specified

for a finding of unfair dismissal to stand on grounds of absence of procedure, there must be clarity on what the procedure should have been and how the employer failed to follow that procedure.

Question 17

Delaney v Staples

Answer 17

• the employee is entitled to be paid during the notice period:

If not paid, this is an unlawful deduction under those wages provisions and a claim can be brought before an ET or a debt action at common law. Employer can waive the notice but must pay in lieu.

Question 18

Bombardier

Answer 18

Also, the mere fact of a redundancy situation does not mean that redundancy is the principal reason for dismissal - look out for other reasons for selection for redundancy that may be a basis for claiming that it is an automatically unfair reason for dismissal (with no qualifying period) would have to show that this is the principal reason for dismissal and not redundancy:

Question 19

James v Tipper

Answer 19

Redundancy

Motive not relevant, following moon v homeworthy.

Question 20

Atomic Energy v Claydon

Answer 20

‘place where the employee was so employed’ – scope of contractual mobility clauses:

Facts: Employees terms and conditions required him to work at any other establishment. He refused to move to new location and was dismissed. Held: Accepter employer’s argument that the need for employees had not ceased in the placed where he was employed because he was obliged to work anywhere under the terms of the contract. Found that the employee’s refusal to work in another office amounted to disobedience; employee was therefore fairly dismissed for misconduct and was not entitled to compensation.

Question 21

What is controversal about eh 2 years qualifying period?

Answer 21

The qualifying period has changed over the life of the legislation, from 6 months, to one year, to the current two years. It is thus subject to controversy,

One of the main advantages to the qualifying period from the employer’s point of view is that it gives some time within which to assess the employee’s suitability for the job, safe in the knowledge that the relationship can be terminated within less risk of litigation. It also encourages job creation

Question 22

Kaur

CA

Answer 22

The Court of Appeal (CA) confirmed that the position was that, in cases where there may have been an earlier repudiatory breach which has been affirmed by the employee, if there is subsequently conduct which, taken together with the employer’s earlier fundamental breach, causes the employee to resign or plays a part in the decision of the employee to resign, the later act effectively reactivates the earlier repudiatory breach. The employer’s further act can be described as “reviving” the employee’s right to terminate the contract.

Question 23

Atkins

HL

Answer 23

Procedure

1. written statement

An employee’s dismissal can only be justified on facts and reasons known to the employer and in his or her mind at the time of dismissal. Evidence about the employee which comes to light after the dismissal cannot be used to justify dismissal, however damning that evidence might be.

Held by house of lords :The legislation required an employer to justify a dismissal by demonstrating first the reason for the dismissal and second that the employer acted reasonably in dismissing the employee because of this reason. The legislation limited the employer to reliance on the original reason for dismissal.

Question 24

What is wrongful dismissal?

Answer 24

• Common law dismissal action
• worker
• employer has terminated his emploer in breach of contract
• Claim can be brought in civil courts if worker or ET if an employee (remedy of damages is capped at £25,000 - but no cap in the civil courts).

Question 25

Simmonds v Milford

Answer 25

previous warnings taken into account, might be sufficient to show fair procedure.

Question 26

Buckland v Bournemouth University CA

Answer 26

test for constructive dismissal is a contractual test not a reasonableness test – once a repudiatory breach has been committed by the employer it cannot be “cured” – it is up to the employee to affirm or reject it – could delay resigning until after internal inquiry. Can delay their resignation so long as there is still a causal link. **Facts:** Buckland (professor) was a harsh marker and failed students who took his course,the exam papers were then moderated and some marks changed. Buckland thought this process had undermined his authority and breached the implied term of mutual trust and confidence in his employment. The tribunal agreed. Buckland waited until internal enquiry which university organised. The enquiry criticised conduct of the colleagues, he resigned anyway. CA held: once a repudiatory breach has been committed it is up to injured party to decide whether or not to terminate contract or affirm. Jacob LJ dissented in part, finding that a party could not cure a repudiatory breach: ‘I do not share Sedley LJ’s regret in holding that a repudiatory breach of contract, once it has happened, cannot be ‘cured’ by the contract breaker. Once he has committed a breach of contract which is so serious that it entitles the innocent party to walk away from it, I see no reason for the law to take away the innocent party’s right to go. He should have a clear choice: affirm or go. Of course the wrongdoer can try to make amends – to persuade the wronged party to affirm the contract. But the option ought to be entirely at the wronged party’s choice.

Question 27

Preliminary steps to take when discussing unfair dismissal?

Answer 27

1. Only available to employees, s94 2. Qualifying period, s108 – 2 years continuous employment required unless employee can show that the dismissal was for an “automatically unfair” reason 3. Claim for unfair dismissal brought before an ET 1. Three month (s111) to bring a claim.

Question 28

Turner

Answer 28

**Misconduct case:** band of reasonable responses test compatible with protection of human rights. * Lord Alias found the band of reasonable responses test was compatitble with human rights. Human right issue is engaged and the culpuability of the employee must be investigated with respect to the consequences for the employee. * The band of reasonable responses test allows for a flexibel test to be adopted where there is more serious consequences.

Question 29

Williams v Watsons

Answer 29

Frustration will be ‘rare occurrences’

Question 30

Gunton v Richmond CA The "Gunton extension"

Answer 30

Alternatively, the employee can seek damages for breach of a contractual disciplinary procedure which must be followed before notice of termination may be given validly. In which case, the time such a process may have taken, had it been followed, can be added to the notice period when determining the period in respect of which damages are to be assessed. Where the employer has terminated the contract without giving notice, all the claimant can expect is to have worked out his or her notice period and earned a wage during that time. **Facts@** In this case, the employer dismissed the employee on disciplinary grounds without going through the disciplinary procedure laid down in the centract of employment. The court accepted that the disciplinary procedure bound the employer and was not displaced by the employer's power to dismiss the employee with notice. The court held that the appropriate measure of damages was the pay the employee could have expected to receive for the time it would have taken to conduct the disciplinary process and to dismiss him with notice. In effect, the contractual disciplinary procedure served to lengthen the employee's notice period. **Criticisms:** the measure of damages assumes that the employee would have been dismissed. This undervalues the role of the disciplinary process, because if the employer had given the employee a hearing, it might have emerged that the accusations against the employee were false. On this view, it would be appropriate to award the employee additional compensation to reflect this.

Question 31

Wincanton v Stone

Answer 31

reasonable to dismiss after accumulated warnings. lead to a reasonable employer after a number of warnings to dismiss.

Question 32

MBNA v Jones

Answer 32

inconsistency of treatment does not necessary mean unfair dismissal. ## Footnote A colleague who had been involved in incident along with employee, one was dismissed, one was given a written warning. Held: within bound of reasonable responses because there were some differences between the case.

Question 33

What is summary dismissal?

Answer 33

Dismissal without notice

Question 34

Is it important to be a dismissal under ERA s95(2) or s95(1)

Answer 34

Yes/ it is only under ERA s95(2) that entitled the employee to a redundancy payment.

Question 35

Sainsbury’s v Hitt

Answer 35

‘band of reasonable responses’ test applied in a case of suspected misconduct

Question 36

B.S. v Dundee CC

Answer 36

ill-health (capability) dismissal – Q: how long before it is reasonable to dismiss? A: whether any reasonable employer would have waited longer before dismissing the employee. If enough employers would have dismissed after a period of time (Evidence perhaps) then a fair dismissal.

Question 37

Igbo

Answer 37

The parties cannot contract out of the unfair dismissal legislation, but they can reach a settlement agreement in which the employee agrees not to litigate their claim subject to independent legal advice. **Facts:** An employee allowed to take leave beyond normal holiday entitlements to visit family abroad. Employer required them to sign statement that if she does not return to work the contract would be terminated. She could not return by the date set because she was unwell, but employer treated this as end to contract, she claimed unfair dismissal – was this a settlement agreement. Held: she claimed unfair dismissal, agreement was void because it tried to contract out the unfair dismissal act.

Question 38

Johnson v Unisys

Answer 38

**Wrongful dismissal: applied Addis** must take account of limits arising from unfair dismissal legislation – known as the ‘Johnson exclusion zone’ * This did not overule its HL earlier decision in the Malik case

Question 39

Summery dismissal

Answer 39

If employee resigns without notice for no good reason, this is a summery dismissal and the employer does not need to pay them.

Question 40

Nelson v BBC (No. 2)

Answer 40

Reductions in compensation can be made where there has been contributory fault on the part of the employee, s123(6):

Question 41

NHS v Pillar

Answer 41

can take account of prior incidents that have been recorded where no disciplinary action was taken. If evidence that these incidences took place. Ms Pillar, a nurse, was dismissed for gross misconduct after a third patient safety incident (PSI). Ms Pillar had previously been responsible for two similar PSIs; However, the manager who investigated the third PSI included in his report details about the two previous PSIs. This investigation report was used at the disciplinary hearing which resulted in Ms Pillar’s dismissal. The EAT said this not a case of “totting up” warnings (as no prior formal warnings had been given), but of an overall lack of clinical competence by Ms Pillar.

Question 42

Murray v Foyle

Answer 42

**Facts:** claimants worked at an abattoir, usually working in a slaughter hall, but under their contracts, they could be required to work elsewhere in the factory too. For economic reasons, the employer decided to cut down its slaughtering activities so made the claiamnts redundant. They argued that the concept of diminishing requirements for employees to do "work of a particular kind" should be construed to include the work they could do under their contracts. This would mean that a much larger proportion of the employer's workforce - not just those in the slaughtering hall -would be up for redundancy. However, the HL rejected this argument, holding that tribunals should focus primarily on what the employees did in fact, and not on their work defined int he cotnract of employment.

Question 43

Is procedural fairness importatant in misconduct cases?

Answer 43

It is especially important. The ACAS Code para 5-30 talks about the need: * need for written warnings before dismissal is contemplated depending on the gravity of the allegations, * an investigation, * a fair hearing with representation and a * right of appeal. **WHAI**

Question 44

Ssekisonge

Answer 44

Standard of fairness is the same if it is an SOSR dismissal:

Question 45

Harper v Virgin Net

Answer 45

**Wrongful dismissal** Damages cannot be awarded for loss of opportunity to claim for ‘unfair dismissal’:

Question 46

Western Excavating v Sharp CA

Answer 46

Constructive dismissal - Must be evidence of repudiatory breach of contract by the employer. The employee must have resigned in response to that breach and employee must not have waived or affirmed the breach – leading case test for constructive dismissal is a contractual test **Denning -** “significant breach going to the _root_ of the contract of employment, or which shows that the employer no longer intends to be bound by one of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”. * Because it is a contract test and link between conduct and resignation (constructive resignation), it is a causation test that must be shown: **denning shows the causal link**

Question 47

Kuzel v Roche

Answer 47

Potentially fair reasons Burden of proof the employer must show there is a fair reason for dismissal At this stage of the inquiry into fairness the employer must show there is *a fair reason for dismissal* – it should not be confused with whether he/she acted *reasonably* when dismissing the employee for that reason which is considered at the next stage.

Question 48

Hadjioannou

Answer 48

**Tried to introduce a proprotionality test** ## Footnote involved a decision of a casino by an employee for socialising with gamblers – this was a breach of the rules. However, employee argued that other employees socialised with gamblers and had not been dismissed so was disproportionate to dismiss him for this reason. Held: this was not relevant – what mattered was the response of the employer in the gravity of the employees conduct.

Question 49

More Difference between Wrongful dismissal and unfair dismissal?

Answer 49

* *limited to employees* – ERA s94(1) - contrasts with claims for wrongful dismissal which, based on the contract, can be brought by workers as well as employees. (Note that under the 1994 Extension of Jurisdiction Order only employees have the right to bring a wrongful dismissal claim in the ET; a worker would have to litigate his/her claim in the civil courts). * *subject to continuity rules* - qualifying period of two years in most cases: ERA s108. Contrast that with wrongful dismissal claims and EA claims which have no continuity requirement. * *normally subject to a three-month time limit for bringing claims*. By contrast wrongful dismissal claims are subject to the normal limitation periods for contract actions (6 years) unless they are litigated in the ET in which case a three-month time limit will also apply (1994 Extension of Jurisdiction Order, Art 7). * *subject to a cap on the compensatory award*. There is no cap on the amount awarded for breach of contract in a wrongful dismissal action or in respect of an EA claim.

Question 50

Packman

Answer 50

**Redundancy:** – what is ‘work of a particular kind’? Ask whether: * was a ‘reduced headcount’ because some employees were switched to part-time contracts even though the same number of employees . **Facts:** Employer suffered downturn and bought software which reduced the number of hours his bookkeeper needed to work. Employer sought to persuade the C to reduce her contracted hours significantly but C refused and she was given notice of dismissal. ET Held: The reason for the dismissal was redundancy, rejecting the assertion that because there had been no reduction in the number of employees required (C still being required, just on shorter hours), there could be no redundancy situation. EAT agreed

Question 51

Safeway Stores v Burrell

Answer 51

**Redundancy**– what is ‘work of a particular kind’? shift from job function/contract tests – replaced with a factual test. Two questions: 1. Has there been a reduction in the workforce because of a business reorganisation? 2. Is the dismissal connected to that reduction? If yes to the factual and causation question then there is a redundancy - this was approved by the HL in Murray.

Question 52

Difference between Wrongful dismissal and unfair dismissal?

Answer 52

* WD based on breach of contract (applies to workers as well as employees) - not an evaluation of fairness of dismissal – action in ET or civil courts * WD no qualifying rule - workers must use civil courts – contract claim – employees can go to ET or civil courts * UD limited to qualifying employees – 2 years continuity * UD based on reasonableness of the decision to dismiss for the potentially fair reason in question – ET * UD - 3 month limit for claims; WD – 6 years in civil courts * UD – cap on compensation (lower for most employees) – no cap on damages for WD

Question 53

Harlow

Answer 53

The terms of the contract can enhance the payment for redundancy: **Facts:** THE CLAIM was for 60,000 pounds, employer questioned the provision, it was not in the handbook but of website of company where they found employee benefits and rights section. Held: because it was on employer website it was deemed to be a contractual clause.

Question 54

Salford Royal NHS Trust v Roldan CA

Answer 54

**Misconduct case:** not a first offence or repeated minor misconduct – should have been given a written warning * It would not be within a band of reasonable responses if it was a first offence that was not too serious or repeated minor misconduct. * At the very least, there should have been a written warning, warning agaisnt dismissal.

Question 55

What is the leading authority for using the reasoning drawn from the law of contract for constructive dismissal?

Answer 55

Western Excavations reaffirmed by the CA in Bournermouth University v Buckland. Held: the employee is entitled to resigna nd bring proceedings for unfair dismissal where the employer has committed a repudiatory breach of fundamental term of the contract of employment (Denning).

Question 56

Emnesy

Answer 56

Practicable - not the same as possible: ## Footnote If close relationship in employment (strong relationship of trust in small business perhaps), and not possible to reengage them to another position, only where close relationship reinstatement would only be practical in few situations. **SAID OBITER:** It was not realistic to make an order of this nature in a case where the parties involved were in close personal relationship to each other as they were in the present situation. It is one thing to make an order for reinstatement where the employee concerned works in a factory or other substantial organisation. It is another to do so in the case of a small employer with few staff. Where there must exist a close personal relationship as is the case here, reinstatement can only be appropriate in exceptional circumstances and to enforce it upon a reluctant employer is not a course which an Industrial Tribunal should pursue unless persuaded by powerful evidence that it would succeed.”

Question 57

Wood

Answer 57

sexual harassment by employer in context was a fundamental breach.

Question 58

Williams v Compair Maxam

Answer 58

A dismissal by reason of redundancy may be unfair under ERA s98(4) * applies band of reasonable responses test to the dismissal of the employee claiming unfair selection criteria have been used – reasonableness of the steps taken to choose the applicant rather than some other employee for dismissal – criteria must be objective not based on ‘personal whim’. **Facts:** New approach. It was established there was a trade union representing employees but not properly consulted before decisions on redundancy’s made. Reasonable employer recognising trade union would consult trade union in context of making redundancies so failure to do so was outside band of reasonable responses leading to UD. Analogous to procedural fairness. If any breach in procedural fairness could lead to unfair dismissal (polkey).

Question 59

Kwik-Fit v Lineham

Answer 59

An employer may not be able to rely upon a resignation made by an employee which had obviously been made in the heat of the moment. Constructive dismissal might still be a possibility. 1. If words are unambiguous then prima facia, employer is entitled to treat them as such, but personalities are an important consideration 2. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual make-up of an employee may be relevant: These we refer to as `special circumstances’. 3. Where `special circumstances’ arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse **Different from Sothern:** * **​**threw keys on the counter and drove off, the next day he asked for outstanding wages and said he would go to a tribunal. **Facts:** Employee at kwik fit was manager of the garage and on the way home he popped into the office and used the toilet. He was seen and employer decided to issue him with a written warning in front of all his colleagues, he reacted badly, he threw down his keys on the counter and drove off. The next day he asked for his outstanding wages and said he would go to tribunal. Was employer entitled to treat this as a resignation. Held: no. Employer should have allowed a reasonable time this was the heat of the moment should have made further enquiries as to whether resignation was intended.

Question 60

Unfair dismissal - which court can it be brought?

Answer 60

Only before an ET. If ET finds it unfair, they will award a statutory remedy (in most cases compensation). The employer can dismiss but they must do so fairly. It is mandatory in that it is unlawful for an employer to exclude unfair dismissal by a contractual term.

Question 61

McBride ## Footnote **SUPREME COURT**

Answer 61

**What is reinstatement?** This decision confirms that a reinstatement order can preserve the status quo which existed prior to dismissal even though this differed from the employee’s terms and conditions of employment.**FACTS:** * McBridge was a fingerprint officer who took a fingerprint at a murder scene which then led to an acquittal. There was an investigation and McBride was given restricted duties (even though no misconduct was found). * It was then suggested that she would be redeployed. She refused and was dismissed. Found: 1. Unfair dimissal, and she should have been reinstated. SC found tribunal was entitled to order reinstatement. **Guidance by SC:** 1. In reinstatement, it does not require recreation of every precise factual condition at point of dismissal. Therefore, a new manager could be given to deal with the situation and deal with future conflicts. New guidance by SC suggests reinstatement might be taken more seriously as an option because conclict can be avoided.

Question 62

Malik

Answer 62

‘stigma damages’ could be awarded in exceptional cases **Facts:** * Malik was a senior executive, not at fault, he could not have known about fraud. * He argued wrongful dismissal on amount owed to him and he sought additional compensation due to the stagma attached to him from being at senior level in band. * HOUSE OF LORDS held: stigma damages could be award.

Question 63

Redbridge v Fishman

Answer 63

**Potentially fair reasons: conduct** ## Footnote They were a school manager who was asked to undertake teaching – they refused and was dismissed. Could employer rely on misconduct as a potentially fair reason? Held: yes but found applying reasonableness test (Stage 4) that it was unfair because they were not obliged to obey.

Question 64

Sothern v Franks

Answer 64

this concerned a partnership secretary in a solicitor firm who said “I am resigning” in an ongoing dispute. **CA in absence of other evidence, then the natural meaning of the words could not be overridden by what a reasonable employer would have assumed. Therefore, if you do say I am resigning, -you are judged by the standards of the reasonable employer.** **Fox J -** The essential question in the case is the meaning to the given to those words. Are they ambiguous or are they unambiguous? The Industrial Tribunal, as I have mentioned, held that if the words constituted a resignation in unambiguous terms that was the end of the matter. = **ambiguoity is important** He accepted that there might be exceptions: ‘this is not a case of an immature employee, or of a decision taken in the heat of the moment, or of an employee being jostled into a decision by the employers.’ Relevant: * Sothern was not an unexperienced employee; and * this was not in the heat of the moment. Kwik -Fit v Lineham distinguished

Question 65

Notcutt v Universal Equipment

Answer 65

**Terminations not amounting to dismissal** 1. **Frustration** An event that renders the performance of the contract impossible or unlawful terminates the contract at common law by frustration without the choice or consent of the parties – therefore, no dismissal. **Facts:** doctor advised that the employee would never work again after a heart attack a disabling illness frustrated contract – but this predated disability legislation and would be dealt differently today.

Question 66

Rolls Royce v Unite

Answer 66

there is scope for justifying direct or indirect **age discrimination** if the scheme adopted is proportionate to its legitimate aims under the permitted exceptions in the EA: * – length of service criterion upheld. Although discriminated against young people was a proportionate means of achieving legitimate aim. * Length of service criteria may be a proportionate responce so not UD

Question 67

Sarkar v West London

Answer 67

**Unclear whether a tribunal is asserting its own opinion or not** assessing whether the ET has substituted its own view is difficult. Here the EAT and CA reached different conclusions on whether tribunal had substituted its own opinion

Question 68

Kent CC v Gilham

Answer 68

Differing outcomes from ETs "reasonable employer test" upheld: involved an industrial dispute by dinner staff in schools who refused to accept a pay cut and this led to dismissals (redundancies). There were tribunal cases brought throughout the country. Ground for appeal: different decision made in Kent then another place based on the same facts and circumstances. The EAT took the view that this did not matter that different ET came to different decisions if all of them had considered all the issues and applied the reasonableness test appropriately. This is a huge issue and problem.

Question 69

Lavarack

Answer 69

As well as his/her wages, the successful claimant may be able to claim for the value of fringe benefits during the notice period (plus any *Gunton* extension) – provided there is a contractual entitlement to those fringe benefits, see:

Question 70

Is an automatically unfair reason discrimination?

Answer 70

NO! The only automatically unfair discrimination is in ERA s99. This does not include discrimination such as race.

Question 71

Eastwood

Answer 71

narrow interpretation put on ‘*Johnson* exclusion zone’ **Facts:** employees claimed for breaches of the implied term of mutual trust and confidence which had arised during disciplinary proceedings which eventually led to their dismissal. The employer behaved appallingly. As a rusult the employees suffered serious pyschological injury with the effect that they were unfit to work. **HL HELD:** Confined Johnson decision to the dismissal itself. If the employee's claim arose during the period leading up to the dismissal, it was not precluded by the fact that the employees were eventually dismissed. But the employee's psychological injuries or other losses resulted from the fact of dimissal, a claim would be precluded by johnson.

Question 72

O’Brien v Prudential Assurance

Answer 72

**Potentially fair reason: SOSR** ## Footnote Failure to reveal history of mental illness when asked at job interview. Found: SOSR

Question 73

What percentage of employees are re-employed/ re-enageged?

Answer 73

About 5%

Question 74

Irani

Answer 74

**Wrongful dismissal** ## Footnote – trust and confidence remained.

Question 75

‘constructive dismissal’

Answer 75

if the employer commits a repudiatory breach of contract, the qualifying employee is entitled to resign without notice, ERA s86(6) - * giving rise to a claim for unfair dismissal and/or discriminatory dismissal

Question 76

In wrongful dismissal, if you are an employee will you bring your case to the ET or in the civil courts?

Answer 76

Damages are the only remedy available if a wrongful dismissal claim is brought in the ET, only up to £25,000. The civil courts can award damages too, with no upper limit, and have additional powers of remedy

Question 77

Dunnachie

Answer 77

Compensation for UD ETs have a wide discretion to award what is ‘just and equitable’. But there are limits on the ET’s discretion – only compensation for financial loss: * **HL rejected award for injury to feelings​**

Question 78

Max basic award for compensation? for UD

Answer 78

£15,240

Question 79

Bass Leisure v Thomas

Answer 79

Departure from contractual and return to geographical. Thomas was based at the Coventry depot. Her job was to travel round the area and collect money from fruit machines. The employer wanted to close the depot but wanted Thomas to move to the North East Birmingham depot: Her clause contained a contractual mobility clause. She tried to work from the requested location, but it took too long to commute. She resigned and claimed constructive dismissal. EAT Held: She had been constructively dismissed by reason of redundancy. Her place of employed had closed. The offer of work at the alternative depot was not suitable alternative employment.

Question 80

Murray v Foyle Meats HL;

Answer 80

Approved the Safeway Stores v Burrell test * approved factual test: was dismissal attributable to a diminution in the employer’s need for the employees?

Question 81

Crticisms of the unfair dismissal categories

Answer 81

Davis suggested three categories for UD. However, she notices that the legislator did not make seperate provisions in relation to each right. This approach, she said was "unnecessarily complicated" and there was a risk that it might fail to provide comprehensive protection.

Question 82

Monie v Coral Racing

Answer 82

**Misconduct case:** reasonable belief in guilt even if the employee may have been innocent – dismissal within band of reasonable responses. * Theft from a betting shop - only two employees on duty. * Employer was sufficiently suspicious of them both. * Found: on evidence that the tribunal was entitled to find the employer had a reasonable suspicion at the time of dismissal, even though it was possible that the employees were innocent. * The dismissal was in the band of reasonable responses

Question 83

GM Packagingv Haslem

Answer 83

it can be fair to dismiss on the recommendations of an external consultant. The bringing in the external consultant might be to show who should be dismissed.

Question 84

What are the three automatically unfair dismissal categories?

Answer 84

1. Asserting individual rights 2. trade union activities 3. other forms of colelctive consultation

Question 85

General criticisms of the band of reasonable responces test:

Answer 85

1. it is argued that the test does not allow tribunals to set standards for employers' behaviour. It encoruages them to reflect "what some employers" might do, rather than making an independant determination of what is fair or unfair. This allows for harsh situations 2. The statute itself uses the phrase "reasonably or unreasonably", thus, the *Iceland* test is wrong because it does not reflect the true meaning of the statute.

Question 86

Who can bring a claim for unfair dismissal?

Answer 86

Only **qualifying employees**

Question 87

Haddon

Answer 87

In late 1990s, the EAT sought to replace Iceland with a basic test of fairness saying Iceland test was perverse. But the CA rejected this in Madden and Foley

Question 88

Chabra v West London SUPREME COURT

Answer 88

– restarting disciplinary process The hospital was ordered to start the disciplinary process.

Question 89

Clarke v Eley

Answer 89

The redundancy must not violate equality law – if it does a separate claim can be brought under the EA in addition to any claim under the ERA selection of only part-time workers for redundancy amounted to indirect sex discrimination

Question 90

Whitwood Chemical v Hardiman

Answer 90

The general rule at common law is that the courts will not enforce a contract of employment either directly by specific performance or grant of an injunction:

Question 91

Irwin ## Footnote **House of Lords**

Answer 91

**Potentially fair reason: "some other substantial reason" SOSR** * residual category but does not have to relate to the other listed reasons in s98(2) * reason can be based on general business considerations but not to be blurred with redundancy. This is an old case. **Critisisms:** it goes against the whole purpose of the legislation to provide employment security (SOSR sections).

Question 92

Reilly v Sandwell MBC [2018] UKSC

Answer 92

it was alleged that a school employee failed to disclose a relationship with a person convicted of serious criminal offence – ET – fair dismissal. SC - Lady Hale (obiter) questioned the appropriateness of the reasonableness test in *BHS* v *Burchell* and also whether it could be a fair dismissal if the alleged conduct was not a breach of contract.

Question 93

British Aerospace v Green

Answer 93

530 dismissed out of 7,000 - right to discovery of documents about selection criteria.

Question 94

Can an employee claim unfair dismissal (if there was an economic dismissal), if the reason for redundancy by the employer when dismissing, or the procedure that followed is flawed or unlawful?

Answer 94

Yes ## Footnote It is also possible to bring a claim under the EA, if it is alleged that the redundancy decision or procedure follow is directly or indirectly discriminatory because of a protected characteristic.

Question 95

Palmanor

Answer 95

abusive and insulting language by employer in context was a fundamental breach.

Question 96

Smith v Hayle

Answer 96

​Automatically unfair reasons * Where the employee has two years or more continuious employemnt, the normal rule applies, namely it is for the employer to show the reason for dismissal. * However, where the employee has less than two years’ service: he or she will acquire the burden of proving that the reason for dismissal was an automatically unfair reason.

Question 97

Atkinson

Answer 97

Not necessary at stage 1 whether employee is also in repudiary breach of the contract Even if employee had committed acts of misconduct, , if employer is in breach this is still a constructive dismissal. The fact of employee’s misconduct will be relevant at a later stage, mainly the damages.

Question 98

*Delaney* v *Staples* ## Footnote ***HOUSE OF LORDS***

Answer 98

* The respondent employer's failure to give the appellant a payment in lieu of notice when he summarily dismissed her did not amount to a deduction from wages * A payment in lieu of notice is not “wages” within the meaning of the Wages Act where it relates to a period after the termination of the employment. Wages are payments in respect of the rendering of services during the employment, so that all payments in respect of the termination of the contract are excluded save to the extent that they are expressly included under s.7(1). Thus, payments in respect of “garden leave” are “wages” within the meaning of the Act since they are advance payments of wages falling due under a subsisting contract of employment. But all other payments in lieu, whether or not contractually payable, are not wages since they are payments relating to the termination of the employment and not to the provision of services under the employment. * Accordingly, payments in lieu are not wages where, as in the present case, without the agreement of the employee, the employer summarily dismisses the employee and tenders a payment in lieu of proper notice;

Question 99

Temple Bird

Answer 99

the EAT overturned the tribunal’s finding of a fair dismissal when the claimant was selected for redundancy, notwithstanding that she had scored higher than the other person at risk. The EAT held that the decision to select someone for redundancy had to be sufficiently objective and must “withstand close scrutiny”. A criterion such as “the overall requirements of the business” was found to be too subjective. It was a “statement of the obvious”. The object of any redundancy exercise is to retain those employees who are best equipped to enable the company to trade profitably in the future. Those employers who wish to use the criterion “the overall requirements of the business” would, said this tribunal, have to place all members of the workforce into the selection pool.

Question 100

Logan v Celyn House

Answer 100

was the repudiatory breach a reason for the resignation? Yes, is constructive dismissal, does not necessarily have to be the principal reason for the resignation.

Question 101

What are the two conditions that must be met to obtain an injunction (Wrongful dismissal) if the employer choses not to accept the breach?

Answer 101

* trust and confidence must remain * damages alone are an insufficient remedy

Question 102

Advantages of the ICeland tesst

Answer 102

1. It indicates that tribunals are not supposed to overturn employers' decisions just because they disagree with them. The Iceland formulation helps to remind tribunals of their proper role. It makes the system more predictable: employers know that if they stay in line with generally accepted practises, their dismissal decisions are likely to be upheld.

Question 103

Subject to the **qualifying conditions,** what are the five main questions to be asked by an ET in an unfair dismissal claim

Answer 103

**DAPRR** 1. Has the employee been dismissed? 1. Fact of dismissal – not looking at fairness. 2. Is the reason for the dismissal one that is automatically unfair? 1. Look for automatically unfair reason, if there is an automatically unfair reason you skip the next two stages and go to stage 5. 3. Has the employer shown a potentially fair reason for the dismissal? 1. Burden on proof on employer to show this. Misconduct/reundarncy is a potentially fair reason. 4. If there is a potentially fair reason, has the employer acted reasonably or unreasonably? 1. Only here we look at fairness. Legislation has been read as a reasonableness. Finding of fact by tribunal. In addition to substantive action by employer (such as redundancy), employer might fall down because it was procedurally unfair (not given employee a chance to explain actions), 2. Substantive and procedurally fair. 5) What remedies are available to the employee who has been unfairly dismissed?

Question 104

Robinson v Bowskill

Answer 104

For the purposes of calculating continuous employment, the EDT will be extended if the employee does not receive the statutory minimum period of notice: it is the date the employee is informed (in this case by her solicitor) even if a day earlier than the day she reads the dismissal letter. * Employees solicitor informed them that they were told by employer that the letter was in the post. The next day they got the letter, this made a different. Held: fact solicitor told them the day before meant they had been informed.

Question 105

Criticisms of the band of reasonable responses test?

Answer 105

Collins points out that dismissal may be fair even though they can be seen as "harsh". E.g. where an empployee asks the boss if he can leave early because his wife is ill. The boss agrees but later on another member of staff see the employee at the pub. Although the employee has never done anything wrong before, the employer takes the view that the employee is not to be trusted and dismisses him. (_This is similar to what happened in Foley)._ The band of reasonable responses test means that once a tribunal has found that some employees would dismiss in this situation, the dismissal is not unfair, even if other employers would have imposed a lesser penalty.

Question 106

Horst [1997]

Answer 106

redundancy despite mobility clause: **Facts:** The place where employee employed is to be determined by “a consideration of the factual circumstances which obtained until the dismissal”. * Approved the Bass Leisure Test. **Facts:** 1. Silver-service waitresses’ terms of employment contained mobility clauses, but in practice the applicants had worked for one particular client,. In 1993, cuts in Hill Samuel’s budget necessitated a re-organisation which resulted in the need for fewer waitresses working longer hours, and the applicants were dismissed. 2. CA Held: The applicants were redundant. Rejected the argument that ‘the place where the employer was so employed’ extended to every place where the employee could be required to work. **Peter Gibson LJ:** “If an employee had worked in only one location under his contract of employment for the purposes of the employer’s business, it defies common sense to widen the extent of the place where he was so employed, merely because of the existence of a mobility clause.” Further “It would be unfortunate if the law were to encourage the inclusion of mobility clauses in contracts of employment to defeat genuine redundancy claims”

Question 107

What is unfair dismissal?

Answer 107

* **Statutory dismissal action** * brought by the **employee** * subject to **qualifying conditions**

Question 108

What did Sedley J stress in the case of Buckland?

Answer 108

He emphasissed that while a constructive dismissal will often also be unreasonable, the two tests should be kept separate. Once a repudiatory breach has occured, it cannot cure the breach. Buckland did not lose the right by waiting to see what would happen at the enquiry,

Question 109

Madden and Foley

Answer 109

CA – rejected approach in Haddon. The HL in Madden re asserted the Iceland test. HL said in Madden, that Hadden was an unwarranted departure from authority – parliament hadn’t amended the legislation.

Question 110

A v B

Answer 110

**Misconduct case:** where a serious allegations of criminal behaviour. There must always be the subject of the most careful investigation. While it is unrealistic and inappropriate to require the safeguards of a criminal trial, a careful and conscientious investigation of the facts is necessary * EAT said it would be unrealist and inappropriate if the same standards were applied as in a criminal law case, but there must still be a careful and conscientious investigation.

Question 111

Hindle

Answer 111

**Redundancy:** what is ‘work of a particular kind’? work was ‘too good and too slow’ – dismissal was not a redundancy – the employer’s needs for ‘work of a particular kind’ had not changed

Question 112

Port of London Authority v Payne

Answer 112

what is practicable? It is not the same as possible. * This is not the same as not possible, it is whether it is practicable. * In this case, 12 trade union stewards were dismissed found they had been unfairly selected for redundancy. The tribunal had ordered their reengagement. * CA said reengagement was possible but not practicable because employer although rejected employers defence of no vacancies, there were relevant economic situations. The employers business situation might be taken into account.

Question 113

Shaw v CCL

Answer 113

breach of Equality Act is a repudiatory breach

Question 114

Leach v OFCOM **COURT OF APPEAL**

Answer 114

​Potentially fair reason: SOSR ## Footnote CA gives a general warning: SOSR was not to be used as a "convenient label" to stick on any situation where an employer feels let down, or a conduct reason is not available or appropriate There must be a particular reason the Tribunal believe is a potentially fair reason

Question 115

Edwards + Botham SC Joint cases

Answer 115

Influences by Johnson This case has led to uncertainty about the present state of law. 1. This is a more recent case than Johnson. 2. The claiamnt sought to go beyond the Gunton approach and to seek damages for loss of earnings brought about by his employer's failure to follow his contractual disciplinary procedure. **Facts of Edwards:** Edwards was a consultant who was accused of inappropriate conduct towards a patient. It was alledge that his employer failed to follow his contractual disciplinary procedure in full. **Facts of Botham:** A youth worker had been accused of inappropriate behavious towards young people in his care and was dismissed without full compliance with a contractual disciplinary process. In both cases, the dismissals had devastating effects on the individual's career prospects. In both cases, it was alledged that had the disciplinary procedures been followed properly, they would not have suffered damage to their reputations and ability to obtain another job. **7 member Supreme Court, which was split 4/3 on the result.** **Majority held:** That the claimants were precluded from recovering substancial damage because of the decision in Johnson v Unisys. (This is strange because Johnson dealt with an implied term of mutual trust and confidence whereas Edwards was concerned with contractually agreed disciplinary procedures. Held: 1. The Johnson exclusion area applies to claims for damages arising out of breaches of contractual disciplinary procedures as well as to claims based on the implied term of mutual trust and confidence. 2. Found on the facts the claims by Edwards and Botham both fell within the Johnson exclusion area and so failed. **Lord Phillips:** took a different route: 1. He thought the focus on parliamentary intention in the other majority judgments was artifical excerse 2. He preferred to develop the common law approach, starting with *Addis* and treating th eissues as one of remoteness or causation 3. The Malik case was distinguished because "the stigma damages recognised were not caused by wrongful dismissal".

Question 116

Abernethy v Mott

Answer 116

**Written statement:** Where an employer uses an incorrect “label” at the time of dismissal this does not prevent another reason for dismissal being proved at the industrial tribunal hearing. * Employer knew reason for dismissal, but did not give that reason to the employee - it was misdescribed. **EXCEPTION:** I sufficient evidence that employer is simply being kind to the employee by givign a false reason. But this is unlikely to be accepted today because of the greater emphasis in transparency. **FACTS:** At the industrial tribunal hearing Mr Abernethy relied on the fact that he had been told he was being dismissed for redundancy when it turned out there was no redundancy situation. In fact he was being dismissed because the employer had wished to transfer him from head office to a site, and he had refused. Held: The Court of Appeal rejected the appeal and held that an incorrect “label” used by an employer at the time of dismissal does not prevent another reason being proved at the industrial tribunal hearing. The reason for dismissal is the set of facts known to, or the beliefs held by, the employer, which cause him or her to dismiss the employee. The reason given at the time of the dismissal may be evidence of the real reason, but does not necessarily constitute the real reason.

Question 117

Addis ## Footnote **House of Lords**

Answer 117

**Established:** 1. The aim of an award of damages is to place the claimant in the same situation as if the contract had been properly performed. 2. In addition, damages at common law can only be awarded for **financial loss** caused by breach of contract not for injured feelings, mental distress or damage to reputation stigma damages and damages for harm to reputation or hurt feelings - are not recoverable in a wrongful dismissal claim, though they may be reocverable in other types of breach of contract claim, as in Malik. * It was held in Johnson v Unisys - that Addis only precluded claims for hurt feelings and damage to reputation arising from the fact of dismissal itself. Since Johnson was claiming for a breach of the impied term of mutual trust and confidence, the Addis ruling did not govern his case.

Question 118

Triggs

Answer 118

work related stress shown to be a breach of – breach of trust and confidence term

Question 119

Moon v Homeworthy Furniture

Answer 119

**Redundancy** – respect to the managerial prerogative – no investigation into the rights and wrongs of the redundancy itself (does not prejudge the possibility of an unfair dismissal of the individual employee). EAT said it was a decision of management to close the factory, this was the fact of redundancy and there cannot be investigations of the right and wrongs of the redundancy.

Question 120

Iceland v Jones

Answer 120

EAT laid down a test of whether an employer acted reasonably. The EAT has laid down a general test based on the response of the ‘reasonable employer’ * ET must not substitute its own approach to such a decision but instead will ask: did the employer’s response fall within a ‘band of reasonable responses’ to the employee’s conduct which a reasonable employer might have adopted? – respect for autonomy of managerial discretion - no fixed standard of reasonableness:

Question 121

Redfearn v UK

Answer 121

proportionality should be applied if human rights infringed Guidance of European court of human rights. Bus driver who was dismissed because of concerns about him and was this a dismissal because of religion or belief (political belief), this case was brought in as a PC. He sought unfair dismissal and if he was able to show he was dismissed contrary to freedom of association of political party, this would be a breach of the convention and any dismissal should have been proportionate.

Question 122

Morrow v Safeway Stores

Answer 122

breach of duty of mutual trust and confidence _always_ amounts to a fundamental breach.

Question 123

Buckland v Bournemouth University [2011] EWCA

Answer 123

In a case involving a constructive dismissal – which involves misconduct by the employer – it is important to separate out the issue of dismissal from that of fairness. It is still possible that the employer may be able to show a potentially fair reason for dismissal and satisfy the reasonableness test. * The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. * But the issue of substantive fairness of dismissl is a seperate question. * Although the university breached the relationship of mutual trust and confidence (which is a fundamental breach of contract so constructive dismissal). **If breach of mutual trust and confidence it will create strong presumption that this is an UD in the fact that a reasonable employer would not have breached mutual trust and confidence.**

Question 124

Madden

Answer 124

A bank dismissed an employee who was suspected of dishonesty after they carried out an investigation. Tribunal said: big organisation not a sufficient enquiry – outside reasonable responses CA took the view that this was the ET substituting itself as the employer, it should have applied standard of reasonable employer, not reasonable tribunal could have found it was not within reasonable responses because bank had conducted an enquiry. The bank had not found any other employee might have committed the crime and this is what a reasonable employer might have dismissed. **Critcisism:** This was inhouse, not reported to the police. This would have been on their record if being dismissed. Perhaps a better investigation should have taken place

Question 125

London Ambulance Service v Small

Answer 125

From time to time ETs fall into the trap of substituting their own views instead of applying the ‘band of reasonable responses’ of the ‘reasonable employer’ test.

Question 126

Wilson v Racher

Answer 126

Employers must also have regard to the ACAS Code of Practice on ‘Disciplinary and Grievance Procedures’. SUMMARY DISMISSAL * The use of obscene language by a normally efficient employee on a solitary occasion when severely provoked by his employer would not justify dismissal. **Facts:** W was employed by R as a gardener; he was diligent and efficient and did nothing which could be regarded as blameworthy by a reasonable employer. When R aggressively and provocatively criticised W for trivial reasons, W attempted to walk away but in the face of continued unjustified criticism used obscene language to R in front of R’s wife and children. As a result R dismissed W. R appealed against the county court judge’s finding that the dismissal was unfair. Held: Bad language and outburst, but employer also been abusing and outcome was that this was found not sufficient to justify summery dismissal.

Question 127

McMaster

Answer 127

For the purposes of calculating continuous employment, the EDT (effective date of termination) will be extended if the employee does not receive the statutory minimum period of notice: The effective date of termination is the date on which the employee knows he or she is being dismissed. * Simply having a date on a letter, but if letter is not received until a week later, and can be shown as evidence, then it will be the later date. **FACTS:** On the day the letter arrived at M’s home (9 November 1995), M was away on a trip and he did not return and read the letter until the next day. 1. The EAT held that the effective date of termination of a contract of employment cannot be earlier than the date on which an employee receives knowledge that he is being dismissed. 2. A tribunal is likely to assume that letters usually arrive in the normal course of post and that people would normally open their letters promptly after they arrived. An employee would not therefore be able to postpone dismissal by deliberately avoiding opening the letter.

Question 128

Shook v Ealing

Answer 128

**Potentially fair reasons: Capability** capability does not have to apply to every aspect of an employee’s contractual duties. need to show dismissed on bases of capability that they were not capable of doing the job to which they were primarily employed. This is a factual enquiry for the tribunal.

Question 129

Sanders v Ernest

Answer 129

* There is an exception to the general rule in Whitwood Chemical v Hardimon. **Elective rule of termination** at common law – an employee chooses whether to accept the employer’s repudiatory breach: Basis rule is still Hardiman, but there is now an exception in elective rule of termination.

Question 130

Pepper v Webb

Answer 130

Employers must also have regard to the ACAS Code of Practice on ‘Disciplinary and Grievance Procedures’. Where summary dismissal * ‘one insolent outburst’ was sufficient to justify summary dismissal on the facts – continuance of the contract of service was impossible. **Held, (1)** that the defendant was justified in dismissing the plaintiff summarily because (per Harman and Russell, L.JJ.) the plaintiff’s insolent conduct amounted to a repudiation of his contract or (per Karminski, L.J.) the plaintiff had wilfully disobeyed a lawful and reasonable order. **Facts:** Involved a gardener and there was at a certain stage an insolate outburst by the gardener in response to being required to plant something. As a result, the employer dismissed them on the spot. On the facts, because employer for many months had been unwilling to do the work – making remarks refusing to do thing. In this context, it was found sufficient for summery dismissal.

Question 131

Buckland

Answer 131

Sedley said: normally the best way is to infer that the employer acted unreasonably because it is in no position to justify its actions.

Question 132

Lewis v Motorworld Garages

Answer 132

– cumulative acts over time, little insults, remarks to undermine the employee. In context, it was a breach of mutual trust and confidence.

Question 133

Thomas

Answer 133

automatic and insensitive redundancy consultation will lead to UD . employer must genuinely apply his/her mind to the issue of who should be in the pool for redundancy