Requirements For Unfair Dismissal

The first requirement for unfair dismissal is that you must be an employee. An employee ‘is an individual who has entered into or works under a contract of employment’ [1] . Employment is defined as ‘employment under a contract’ [2] ; the contract can be expressed or implied [3] . It is clear from the information that Harry, Lucas and Beth are employees.

The qualifying period required to bring a claim in unfair dismissal is one year [4] .The individuals period of employment is considered continuous unless otherwise shown [5] . It is clear that all three achieve this qualifying period.

The applicants must show a dismissal, three definitions of dismissal are found within Section 95 (1) Employment Rights Act 1996 (ERA); 1. The employee’s contract is terminated by the employer with or without notice (summary dismissal) [6] .

Dismissal with notice, It is sometimes difficult to identify if a dismissal has taken place where words have been equivocal or have been spoken in the heat of the moment [7] . In such circumstances employer`s should be given the opportunity to recant what was said [8] . The longer the revoke takes the more difficult it will be to prove non dismissal [9] . The Courts are entitled to look at what was actually meant by the employer even when the words used are unequivocally clear [10] , there for it is advised to require written confirmation even when the termination seems unambiguous.

The contract can be brought to an end by either party giving notice to the other and can be notice of even a year [11] , the notice cannot be open-ended [12] and must provide a date on which the dismissal will occur [13] once notice is provided it cannot be withdrawn without the consent of all parties. If the parties involved have not expressly agreed notice periods then employees are entitled to a statutory period of minimum notice [14] , this statutory period usurps any contractual lesser periods [15] . The notice period depends on length of service and ranges from one to twelve weeks; the employee is obliged only to provide a minimum notice of one week [16] .

Without notice, summary dismissal, only the most serious of offences warrant instant dismissal i.e. crime, dishonesty, abusive or threatening behaviour Etc. Disobedience of lawful orders can in some circumstances justify summary dismissal as can a series of lesser offences, however individual lesser offences should be dealt with by warnings as to future conduct [17] . Any notice periods contractual or statutory that the employee had are forfeit when dismissed summarily.

2. A fixed term contract expires without being renewed [18] .3. The employee terminates the contract, with or without notice in circumstances where he is entitled to terminate without notice by reason of the employers conduct [19] (constructive dismissal). This entitles the employee to terminate his contract by reason of the employers conduct, where the behaviour constitutes a repudiation of the contract or where the conduct is a significant or fundamental [20] breach going to the route of the contract. Whether, or not there has been a fundamental breach is a matter of fact [21] .

In Western the Court in deciding whether to allow a claim for constructive dismissal applied a Contractual test in support of the contractual wording of S 95 (1) (c) ERA. This test was affirmed later by the Court of Appeal [22] .In constructive dismissal situations, the Tribunal as a preliminary matter must deploy the contractual test to identify a repudiation of contract before it can scrutinise the fairness of the dismissal, without a breach the employees resignation would not constitute a dismissal and no claim would lie against the employer.

It is necessary to show that the breach was that of the employer, in situations where a supervisory employee is the cause of the breach it will be necessary to show that the supervisor was acting in the course of their employment not just that they had the powers of dismissal [23] .

Employers have a positive duty to ensure that the contracts purposes are achieved [24] and without proper cause employers must not destroy the mutual trust and confidence on which the relationship is founded [25] . Examples of where a constructive dismissal has been held to occur in relation to this scenario include; as possibly in Beth’s case unfounded accusations of dishonesty [26] or failure to investigate [27] . Re Harry, allowing a culture to exist where employees are subjected to foul language [28] offensive remarks [29] , abuse [30] and bullying [31] . A series of minor breaches (which not need be the same) [32] over a period of time ‘the last straw doctrine’ can amount to repudiation [33] . In Lucas`s case failure to follow proper disciplinary procedures [34] , disproportionate disciplinary penalties [35] , mishandling of grievance procedures [36] , discrimination [37] . Further examples include a deliberate reduction in pay [38] which is repudiation ‘par excellence’ [39] stress [40] and overwork [41] . Being treated seriously unreasonably [42] could apply to Harry, Beth and Lucas.

A failure to respect an employee’s rights under the Human Rights Act 1988 [43] would be a breach of the trust duty [44] .

Where the employee feels that there has been a sufficient breach justifying their leaving i.e. an assault [45] or abuse [46] the employee must evidence that their leaving was in reaction to or motivated by the breach [47] . In leaving there is an acceptance of the repudiation and the employee must make it clear that repudiation is the reason for leaving [48] . The employee must decide to leave at the time or soon after the breach [49] as delay could amount to a waiver of the breach [50] and could be difficult to explain. Where there has been a series of breaches over a time period as long as causation is proved even a lengthy delay will not invalidate a claim [51] .

For a contract to be terminated there must be a communication by conduct or words, express, [52] or implied [53] informing the employer that the contract has ceased [54] .

It appears that Harry has been constructively dismissed. Lucas dismissed with or without notice the exact situation would require more information. Beth summarily dismissed without notice.

The date of termination is important for establishing qualifying periods, an entitlement to require written reasons for dismissal, whether the claim has been brought before a tribunal, normally within three months of the effective date of termination, and importantly when any monetary reward should be calculated.

S 97 and 145 ERA 1996 provide; where the employee is dismissed with notice the effective date is when the notice expires [55] notice begins to run the day after it is given [56] . If termination is communicated by letter then it is the date the letter is read [57] or where there was a reasonable opportunity to do so [58] .

Termination without notice is effective on the date [59] and time [60] the termination takes place, if the notice is ambiguous then it is the date that a reasonable employee would understand [61] . Where no notice, or a shorter than required notice is given the proper statutory notice is added in order to determine the effective date of termination [62] .S 97 ERA does not apply to constructive dismissals where the date of termination is that when the employee accepts the repudiation of the contract.

From the information provided the termination dates would be, Beth has been summarily dismissed on the date of the dismissal. Harry when he walked out, accepting the repudiation and Lucas either today with or without notice more detail would be required to decide.

Unfair dismissal, subject to exceptions S94 ERA 1996 states ‘An employee shall have the right not to be unfairly dismissed’. Once employees establish they are eligible to bring a claim the burden of proof passes to the employer to show the reason for the dismissal, and that the reason fell within one of the prima facie categories of fair dismissal [63] .

If the employer fails to show a reason for dismissal, the dismissal is unfair [64] . The employer’s reason for dismissal must be the paramount thing in his mind and will be the set facts known or believed by him to be the reason for dismissal; as in Abernethy above and approved in W Devis [65] . At this stage the employer should have carried out as much investigation into the matter that was reasonable to do [66] , this was approved and expanded that employers should not form their belief hastily without making the appropriate enquiries [67] . in Beth`s case this may not have been completed.

It is not restricted to and can include a number of events [68] , however where there are a number the principle reason for dismissal must be decided [69] .The more reasons put forward the more difficult it will be to establish [70] , should one of the reasons put forward fail the dismissal is unfair [71] .

Prima Facia grounds include [72] Capacity or qualification [73] which could be argued in respect of Harry, [74] conduct [75] for both Lucas and Beth, [76] retirement [77] ; [78] redundant [79] , [80] continued employment would contravene legislation [81] and most importantly the potential catch all category of some other substantial reason [82] this again could be relevant in respect of Lucas. This reason is left wide to enable the court to exercise discretion in its approach to assist employers [83] where the reason does not fit into another category [84] ; examples include awkward personality [85] or personality clashes [86] , If there is a sound business reason [87] or at the bequest of an important customer [88] or where pressure is applied by the customer [89] again this could apply to Lucas. In these circumstances the EAT will require the employer to show convincing evidence of the pressure they were under. Where a person is known to be, or displays membership of a group or organisation [90] , here a reasonable employer was allowed to decide, on reflection and mature consideration what customers could find offensive, and that there was no need to wait to see if business was damaged or disrupted [91] . Commentators argue that Tribunals attach in such cases, considerable weight to employers submissions that the felt obliged to act on the feelings and prejudices, actual or assumed, of their customers, even if objectively assessed the feelings appear unreasonable [92] .

There does not appear to be any automatically unfair reasons barring a claim in this scenario.

Many tribunal cases turn on the definition of a fair reason and reasonableness [93] . The reasonable test was established in Polkey [94] (which is now supported by the Employment Act 2008) where as a matter of statutory interpretation it was to be decided whether the employer had acted reasonably in deciding that the reason for dismissal was a sufficient one. This test has two effects in that it gives the tribunal wide discretion to reach equitable decisions and has led to the importance of procedural fairness. Useful guidelines are contained within Department of Trade and Industry and ACAS documents [95] to assist employers to provide reasonable procedures for redress by an employee. It should also be noted that the Human Rights Act 1988 may have a role to play and any pre HRA decisions should be treated with caution [96] . These guidelines are particularly important for conduct outside of work as consideration should be given to what effect the conduct or allegation has on the employees suitability to perform their role, or on their relationship with employer/employees or customers. The burden of proof is neutral in respect of fairness, however the House of Lords stated that it is logical for the employer to prove the reason has been established [97] .

The range of reasonable response test was developed further over time and culminated with the words of Browne – Wilkinson J in Iceland Foods [98] where the starting point should be the wording of S 98 (4) [99] , where the reasonableness of the employers conduct must be considered, that there is a band of reasonable responses that the tribunal can examine to decide if the employers decision fell within it, and that the tribunal must not substitute its own decision on what the correct course of action should have been.

It is not clear if the employers have complied with statutory procedures on dismissal [100] , if not the dismissal will be automatically unfair unless they have followed a procedure which goes further [101] . It would also appear that none of the staff have been provided with written confirmation on the reason for dismissal or the opportunity of redress or appeal [102] .

Should the tribunal establish unfair dismissal there is a range of remedies including Reinstatement or reengagement [103] where continuity of employment remains intact. Complainants will not be forced back into work [104] which would be tantamount to forced labour [105]

In accessing the tribunal will take into account the complainants views, whether they contributed to the dismissal and if it is practicable for the employer to comply [106] .

The basic financial award depends on length of continuous service and date of termination [107] and compensates up to twenty years service. Age determines the rate of weeks owed per year of employment. There is also a compensatory award [108] the tribunal upon evidence from the employee will award up to a maximum of £65300, what it believes to be equitable with regard to loss and future loss of wages, perks, employment protection and rights and how the complainant was dismissed but there is no compensation for hurt feelings [109] . This award is subject to deductions including payments from redundancy, income support, job seekers, dismissal payments and equitable deductions where the employee shares blame for the dismissal, refuses an alternative job or makes no effort to find one.

Applying the scenario,

The employer may suggest the reason for Harry`s dismissal was capability in reference to his skill, aptitude or embarrassment caused to the university. This appears weak. Harry resigned at the time and because of Ruth`s actions (repudiation) Ruth may or may not have been acting in the course of her employment, he may have a case of constructive dismissal.

Lucas the employer could argue conduct outside of work or alternatively some other substantial reason, i.e. at the request or under pressure from an important client, as above. Case law in this area is grey, each case will turn on its merits, should the employer evidence outside pressure, their reason for dismissal may be valid. Lucas is good at his job, employers must take reasonable steps to improve the relationship and examine other options short of dismissal to obviate the situation [110] . He may have been unfairly dismissed.

Beth has been summarily dismissed; she may have been unfairly dismissed, it appears no investigation has taken place, that the allegation may be unfounded. Had she not been dismissed she may also have had a claim for constructive dismissal [111] . If Beth has been investigated and found dishonest, or if the criteria in BHS above apply there may be automatic grounds to dismiss.

Should the employees win they would have access to the full range of remedies including in Lucas`s case reinstatement.