Employment law – Unfair
Dismissal
UD is a statutory claim for compensation
Introduces the concept of “reasonableness” to protect employees from dismissal at the whim of their employer
Successful claimants can recover a basic and compensatory award
Governed by Employment Rights Act 1996
Step 1: State the basis for the claim
Burden of proof on employee
Employee has a right under s 94(1) not to be unfairly dismissed
Step 2: Has there been a dismissal?
Dismissal is defined in s 95(1)(a)-(c)
Employee is dismissed by their employer only if:
a) The contract under which their employer is terminated by the employer (whether with or without notice)
a. Express dismissal = objective test – Futty v Brekkes (D&D) Ltd
b) A limited term contract ends at the limited term and is not renewed
c) The employee terminates the contract (with or without notice) as a result of a repudiatory breach by the
employer
a. Constructive dismissal – Western Excavating Ltd v Sharp
Burden of proof is on employee to demonstrate that there has been a dismissal
Step 3: Was the individual an employee?
Must have been working under a contract of employment and cannot be part of an excluded class to make a statutory
claim
Step 4: Does the employee have a qualifying period of service?
Must have been employed for a minimum period of service. Length of this will depend upon the start date of the
contract of service and employee’s effective date of termination (EDT)
If contract of service began on or after 6 April 2012 an employee must have at least 2 years continuous
employment – s 108(1)
If contract of service began before 6 April 2012 only 1 years of continuous employment is required
EDT is defined in s 97(1):
a) When a contract of employment is terminated by notice, the date on which that notice expires (whether given
by an employee or an employer);
b) When a contract of employment is terminated without notice, the date on which the termination takes effect;
and
c) When a contract of service is for a fixed term and is not renewed, the date on which the fixed term ends
Step 5: Is the claim in time?
3 months to bring a claim from the EDT – s 111(2)(a)
, Step 6: Has the employee been dismissed for a potentially fair reason?
Burden of proof is on employer to prove reason for dismissal was potentially fair
Capability – s 98(2)(a)
Relates to work of the kind that the employee is actually employed to do. Encompasses qualifications, skill,
aptitude, health and any other physical or mental quality
Conduct – s 98(2)(b)
Refusal to obey a lawful order and reasonable instruction, drunkenness, sexual harassment. Includes criminal
offences and misconduct outside of hours of work so far as the behaviour has an effect on the employment
relationship
Mbuyi v Newpark Childcare – ET held that a Christian nursery employee was discriminated against by her
employer on the grounds of her religion/belief when dismissed for expressing negative views about a
colleagues homosexuality
Belief that employee has committed misconduct may be included as a fair reason if it is reasonably held
genuine belief and employer has undertaken reasonable investigations which resulted in the belief – BHS v
Burchell
Conduct discovered after dismissal cannot be used to justify the termination of a contract of service in UD claim
– W Devis & Sons Ltd v Atkins
Redundancy – s 98(2)(c)
To avoid breaking a law – s 98(2)(d)
Illegal for employee to continue working in their position or for an employer to employ them in it – e.g.
delivery driver banned from driving
Some other substantial reason – s 98(1)(b)
E.g. refusal to agree to new working hours, clash of personalities with other employees
Step 7: Is the dismissal fair in all the circumstances?
Even if there is a fair reason for the dismissal, dismissal will only be fair if Tribunal is satisfied that the dismissal was
fair in all the circumstances. Burden of proof is on employer to demonstrate that the reason(s) were fair on the facts.
2 limbs to test: band of reasonable responses and the procedure adopted.
S 98(4) applies to all steps taken by employer up to point of dismissing employee and requires consideration of
whether an employer was reasonable in the circumstances to treat the potentially fair reason as a sufficient reason for
dismissal
Objective test – question is whether employer acted within the range of reasonable responses, not whether
court/tribunal would have taken a different decision to that taken by the employer – Post Office v Foley and
Midland Bank plc v Madden
Factors considered include:
o Size and administration resources of the employer e.g. what may be a sufficient reason for a small
highly specialised business may not be for a multi-national company
o Sanction given to the other employees who have acted in a similar nature e.g. if an employee was
sacked for turning up to work drunk and another employee was only given a written warning =
unreasonable reaction by employer
o Length of service of the employee and their disciplinary record e.g. is this the first time they have
faced disciplinary action? If so, range of reasonableness is likely to be more limited
McElroy v Cambridgeshire Community Services NHS Trust – summary dismissal of healthcare assistant for coming
to work smelling of alcohol was held to be unfair. Reasonable employer would not have treated smelling of
Dismissal
UD is a statutory claim for compensation
Introduces the concept of “reasonableness” to protect employees from dismissal at the whim of their employer
Successful claimants can recover a basic and compensatory award
Governed by Employment Rights Act 1996
Step 1: State the basis for the claim
Burden of proof on employee
Employee has a right under s 94(1) not to be unfairly dismissed
Step 2: Has there been a dismissal?
Dismissal is defined in s 95(1)(a)-(c)
Employee is dismissed by their employer only if:
a) The contract under which their employer is terminated by the employer (whether with or without notice)
a. Express dismissal = objective test – Futty v Brekkes (D&D) Ltd
b) A limited term contract ends at the limited term and is not renewed
c) The employee terminates the contract (with or without notice) as a result of a repudiatory breach by the
employer
a. Constructive dismissal – Western Excavating Ltd v Sharp
Burden of proof is on employee to demonstrate that there has been a dismissal
Step 3: Was the individual an employee?
Must have been working under a contract of employment and cannot be part of an excluded class to make a statutory
claim
Step 4: Does the employee have a qualifying period of service?
Must have been employed for a minimum period of service. Length of this will depend upon the start date of the
contract of service and employee’s effective date of termination (EDT)
If contract of service began on or after 6 April 2012 an employee must have at least 2 years continuous
employment – s 108(1)
If contract of service began before 6 April 2012 only 1 years of continuous employment is required
EDT is defined in s 97(1):
a) When a contract of employment is terminated by notice, the date on which that notice expires (whether given
by an employee or an employer);
b) When a contract of employment is terminated without notice, the date on which the termination takes effect;
and
c) When a contract of service is for a fixed term and is not renewed, the date on which the fixed term ends
Step 5: Is the claim in time?
3 months to bring a claim from the EDT – s 111(2)(a)
, Step 6: Has the employee been dismissed for a potentially fair reason?
Burden of proof is on employer to prove reason for dismissal was potentially fair
Capability – s 98(2)(a)
Relates to work of the kind that the employee is actually employed to do. Encompasses qualifications, skill,
aptitude, health and any other physical or mental quality
Conduct – s 98(2)(b)
Refusal to obey a lawful order and reasonable instruction, drunkenness, sexual harassment. Includes criminal
offences and misconduct outside of hours of work so far as the behaviour has an effect on the employment
relationship
Mbuyi v Newpark Childcare – ET held that a Christian nursery employee was discriminated against by her
employer on the grounds of her religion/belief when dismissed for expressing negative views about a
colleagues homosexuality
Belief that employee has committed misconduct may be included as a fair reason if it is reasonably held
genuine belief and employer has undertaken reasonable investigations which resulted in the belief – BHS v
Burchell
Conduct discovered after dismissal cannot be used to justify the termination of a contract of service in UD claim
– W Devis & Sons Ltd v Atkins
Redundancy – s 98(2)(c)
To avoid breaking a law – s 98(2)(d)
Illegal for employee to continue working in their position or for an employer to employ them in it – e.g.
delivery driver banned from driving
Some other substantial reason – s 98(1)(b)
E.g. refusal to agree to new working hours, clash of personalities with other employees
Step 7: Is the dismissal fair in all the circumstances?
Even if there is a fair reason for the dismissal, dismissal will only be fair if Tribunal is satisfied that the dismissal was
fair in all the circumstances. Burden of proof is on employer to demonstrate that the reason(s) were fair on the facts.
2 limbs to test: band of reasonable responses and the procedure adopted.
S 98(4) applies to all steps taken by employer up to point of dismissing employee and requires consideration of
whether an employer was reasonable in the circumstances to treat the potentially fair reason as a sufficient reason for
dismissal
Objective test – question is whether employer acted within the range of reasonable responses, not whether
court/tribunal would have taken a different decision to that taken by the employer – Post Office v Foley and
Midland Bank plc v Madden
Factors considered include:
o Size and administration resources of the employer e.g. what may be a sufficient reason for a small
highly specialised business may not be for a multi-national company
o Sanction given to the other employees who have acted in a similar nature e.g. if an employee was
sacked for turning up to work drunk and another employee was only given a written warning =
unreasonable reaction by employer
o Length of service of the employee and their disciplinary record e.g. is this the first time they have
faced disciplinary action? If so, range of reasonableness is likely to be more limited
McElroy v Cambridgeshire Community Services NHS Trust – summary dismissal of healthcare assistant for coming
to work smelling of alcohol was held to be unfair. Reasonable employer would not have treated smelling of
