Unfair Dismissal (L16) Flashcards
What is the background to unfair dismissal?
Statutory claim introduced in 1971.
Aim: to fill the very important protective gap in the common law on unfair dismissal.
Providing protection against unfair or arbitrary dismissal decisions.
Mandatory, cannot be reduced via contract.
Limits to managerial authority.
Key tool for the assertion of other labour rights.
What is unfair dismissal and where is it found in law?
Employment Rights Act 1996, part X.
“An employee has the right not to be unfairly dismissed by his employer” (ERA 1996 s94).
What are the requirements to be eligible for an unfair dismissal claim?
Only ‘employees’.
- Is this fair?
- Could argue employees are more likely to be in a relationship with an imbalance of power/subordination.
- However, more varied working practices now, and different categories of workers are also vulnerable.
Two years’ continuous employment (s108(1)).
- This takes lot of workforce out of scope of protection.
Exceptions to continuity requirement (s108(3)).
- E.g. dismissed for maternity leave, dismissed because of carrying out trade union activities.
What is the requirement to prove there has been a dismissal?
ERA 1996, s95.
Onus of proof on the employee.
What are the potential ways of dismissal?
Contract terminated by employer.
- Not who took the steps, who was the reason?
- Looking at the facts and circumstances.
- Could be a mutual agreement etc.
Fixed term contract expires.
- Terminable at a certain time.
Constructive dismissal.
- Conduct of the employer allows the employee to resign but still bring a claim that the employer’s behaviour effectively amounted to dismissal.
Western Excavating Ltd v Sharp [1978] ICR 221.
- Unreasonable behaviour is not sufficient.
- Must act in repudiatory breach of contract.
- Breach of an implied term e.g. mutual trust and confidence.
What is the three stage test for fairness under ERA 1996 s98?
- Employer must show the reason for the dismissal.
- Is it a potentially fair reason?
- Did the employer act reasonably by treating the potentially fair reason as a sufficient reason for dismissal?
BUT: also automatically unfair dismissals… ss98B - 105.
What are the potentially fair reasons for dismissal?
Capability or qualifications.
Conduct.
Redundancy.
Statutory restriction.
Some other substantial reason.
- E.g. refusal to agree with new Ts&Cs which the employer deems essential.
Must defend the dismissal on the reason they actually gave for the dismissal, not any new information etc.
What is the s98(4) requirement for reasonableness of the decision?
“Whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating [the reason] as a sufficient reason for dismissing the employee”.
To be determined in accordance with equity and substantial merits of case.
How is the test for reasonableness and not fairness? What does it actually look for?
“If an employer has failed to take the appropriate procedural steps … the one question the tribunal is not permitted to ask … is the hypothetical question whether it would have made any difference to the outcome”.
Polkey v A W Dayton Services Ltd [1988] ICR 142 at 163.
Consultation with the employee was not had.
Was it reasonable, not whether the consultation would have made a difference.
Consider the evidence as well the size of the employer/their resources.
What does the ACAS Code of Practice tell us about the reasonableness of procedure and how is this important?
Procedure before issuing a disciplinary or dismissal when due to poor performance or conduct.
Investigation. Written notice of allegation. Meeting.
Right to be accompanied by a fellow worker or a union rep (Employment Relations Act 1999, s10).
Decision. Appeal.
Won’t automatically be unfair, but the ET will take it into account.
Still important, if on other grounds, that the employer follows good practice.
Contractual procedures.
What does Iceland Frozen Foods v Jones [1982] IRLR 439 tell us about the standard of reasonableness?
Range of reasonable responses test.
Starting point should be the statute.
Reasonableness of employer’s conduct. Tribunal must not substitute its own view. Usually there is a band of reasonable responses.
Function of tribunal is to decide whether the employer’s response falls within that band.
Criticisms of range of reasonable responses test.
Faithful interpretation of the statute?
Can the test of “reasonable employer” provide coherence?
Which section of ERA tells us about dismissals due to capability or qualifications?
S98(2)(a).
What specific reasons for dismissal may be due to capability?
Skill, aptitude, health, physical / mental quality.
Performance.
Health.
What is a dismissal due to performance under the capability ground in s98(2)(a)?
Usually pattern of incompetence.
Davidson v Kent Meters [1975] IRLR 145.
- But can be one-off failure to meet standard.
Taylor v Alidair [1978] IRLR 82.
- Dismissal of an airline pilot.
- Faulty landing, damaged the plane.
- Held that the employer had an honest belief that the pilot lacked the skills necessary.
What is the requirement for a dismissal due to health under the capability ground in s98(2)(a)?
Ill-health absence from work.
Not usually considered fair unless the employer has acted on up-to-date health advice.
