Unfair Dismissal

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  • Created by: Edward
  • Created on: 14-03-17 23:26
ERA 1996, s 203
Any term of contract purporting to waive continuity rights would be void
1 of 69
Employment Equality (Age) Reg’ns 2006, reg 30(2)
Not unlawful to dismiss person aged over 65 where reason for dismissal is retirement
2 of 69
ERA 1996, s 212(1)
Weeks which count towards continuity = any week during whole or part of which the mploess’ relations with employer are governed by a contract of emp’t
3 of 69
ERA 1996, s 108(1)
Period of req’d continuity increased from 1 to now 2 years
4 of 69
ERA 1996, s 212(3)
Absences for up to 26 weeks due to sickness/injury;temp cessation of work, or; in circums whereby through custom orr arrangement do not break continuity
5 of 69
Ford v Warwickshire CC (1983)
Continuity preserved re lecturers working under series of contracts each year from Sept-July – even though no subsisting contract in months between = ‘temporary cessation of work’
6 of 69
Flack v Kodak (1986)
Workers laid off and taken back on again, possibly on no of occasions over several years, due to seasonal demand may also have continuity of emp’t
7 of 69
ERA 1996, s 212
Weeks lost through industrial action will neither count towards nor break continuity of emp’t
8 of 69
ERA 1996, s 218(b)
A change of employer during employee’s emp’t does not break continuity
9 of 69
Ex p Seymour-Smith (No 2)(2000)
The 2yr qualifying period did not breach Equal Treatment Directive
10 of 69
Carmichael & Leese v National Power (1999)
There will be no continuity of emp’t if work is simply a series of short self-cotained engagements with gapps in between
11 of 69
ERA 1996, s 95(1)
3 situations where there is dismissal re UD: (a)termination of the employee’s contract by the employer, with or w/out notice; (b)expiry of a fixed-term contract without renewal; (c) constructive dismissal
12 of 69
Sothern v Franks Charsley (1981)
If the words are clear and unambiguous, the tribunal should treat them as such
13 of 69
Chesham Shipping v Rowe (1977)
If words are unambiguous, said in heat of moment or part of argument or row, tribunal may look behind actual words used to ensure that what has taken place really is a dismissal
14 of 69
Futty v D and D Brekkes (1974)
Language which may constitute a dismissal in one industry or situation, may not have the same meaning in another
15 of 69
Martin v Yeoman Aggregates (1983)
It may often be possible for words said in heat of moment to be withdrawn – but in some cases, meer saying of some words may destroy implied term of mutual trust and conf
16 of 69
East Sussex CC v Walker (1972)
An employee prompted to resign by threat of dismissal, may be held to have been dismissed
17 of 69
Birch v University of Liverpool (1985)
However, if resign = prompted not by threat of dismissal, but by offer of a severance package, there will not be a dismissal
18 of 69
ERA 1996, ** 96 and 137
Woman whose employer refuses to allow her back to work after maternity leave will normally be treated as dismissed
19 of 69
ERA 1996, s 95(1)(b)
If the employee is employed under fixed-term contract and that expires without being renewed statute deems that the employee has been dismissed
20 of 69
Employment Relations Act 1999, s 18
It is no longer possible for employees under fixed-term contract to waive their right to UD claim
21 of 69
Dixon v BBC (1979)
Fact that fixed-term contract may include provision for contract to be terminated by notice of either party prior to expiry of fixed-term does not preclude contract from being a fixed-term contract
22 of 69
Buckland v Bournemouth University (2010)
CA: re const dis; whether breach occurred is objy determined; once breach occurred, C entitled to treat as const dis, - breaker can offer amends, but C does not have to accept and can treat contract as at end
23 of 69
ERA 1996, s 95(1)(c)
Gen rule = employee who resigns in circums such that he is entitled to terminate his contract without notice by reason of the employer’s conduct is treated as having been dismissed
24 of 69
ERA 1996, s 92(1)
An employee who has been dismissed can require the employer to give him a written statement ‘giving particulars of the reasons for the employee’s dismissal’
25 of 69
ERA 1996, s 98(1)
In UD claims, the onus of proof is on the employer to show the reason, or, if more than one, the principal reason, for dismissing employee
26 of 69
ERA 1996, s 98(2)(a)
Capability or qualifications is a potentially fair reason
27 of 69
ERA 1996, s 98(2)(b)
Conduct = potentially fair reason
28 of 69
ERA 1996, s 98(2)(c)
Redundancy = potentially fair reason
29 of 69
ERA 1996, s 98(2)(d)
Statutory prohibition = potentially fair reason
30 of 69
ERA 1996, s 98(1)(b)
SOSR = potentially fair reason
31 of 69
ERA 1996, ** 98(ZA-ZF)
Retirement = potentially fair reason
32 of 69
Adams v GKN Sankey (1980)
If dismissal was with notice, but monies representing wages in lieu of notice were given, then the EDT should be that date on which would notice would expire
33 of 69
Dedman v British Building and Engineering Appliances (1974)
Where termination with money in lieu of notice – trad approach = treat money in lieu of notice as a summary dismissal and hold that the EDT was on the date the termination takles place, i.e. final day of emp’t
34 of 69
ERA 1996, s 111
UD claims must be brought within 3 months of EDT although further time allowed if reasonable (s 111(2)(b); although strictly applied (Riley v Tesco Stores (1980))
35 of 69
ERA 1996, s 97(1)
EDT= (a)where notice is given, the date on which that notice expires; (b)where no notice given, the date on which the termionation takes place; (c) in event of fixed-term contract not renewed, the date on which contract expires
36 of 69
Rolls-Royce v Walpole (1980)
Freq’y range of responses to conduct or capacity of employee from and inculduig summary dismissal to mere informal warning, which can be said to have been reasonable
37 of 69
ERA 1996, s 98(4)(a)
Whether dismissal fair will turn on whether an emp’t tribunal considers that the employer acted reasonably in treating that reason ‘as sufft reason for dismissing the employee’
38 of 69
Taylor v Alidair (1978)
Where a man is dismissed for incapacity or incomp’e it is sufft that the employer honestly believes on reasonable grounds that the man is incapable and incompetent – it is not nec for the employer to prove that he is in fact capable or incompetent
39 of 69
International Sports v Thompson (1980)
Dismissal fair – company had carried out reasonable investing into her absences, given reasonable warnings, and in absence of any improment in attendance, were justified in dismissing her
40 of 69
ERA 1996, s 98(3)(a)
‘capability’ = employee’s capability assessed by ref to skill, aptitude, health or any other physical or mental quality
41 of 69
ERA 1996, s 98(3)(b)
‘qualifications’ employee’s degree, diploma or other academic technical or professional qualificn relevant to position held
42 of 69
ASLEF v Brady (2006)
C not really dismissed for misconduct, but because of politically-moyivated hostility towards him – thus, could not fall under any s 98 category and thus UD
43 of 69
BHS v Burchell (1978)
Conduct can include dishonest; facts of the belief/reasonable grounds/investigation
44 of 69
Meakin v Liverpool CC (2000)
Conduct can include fighting at work
45 of 69
Atkin v Enfield Hospital (1975)
Conduct can include refusal to obey instructions
46 of 69
Wilcox v Humphries & Glasgow (1975)
Conduct can include breach of health & safety regs
47 of 69
Midland Bank v Madden (2000)
Test= whether dismissal fell within range of reasonable responses open to employer in all circums and tribunal must not sub employer’s view for own
48 of 69
Monie v Coral Racing (1981)
If one group of employees is guilty of misconduct, but the employer cannot ascertain ind(s) was/were responsible, it can be fair to dismiss the whole group
49 of 69
Devis v Atkins (1977)
HL: in assessing fairness, a tribunal cannot have regard to matters which the employer was unaware of at time of dismissal
50 of 69
ERA 1996, s 98(4)(a)
Whether dismissal fair will then turn on whether employer acted reasonably in treating the redundancy ‘as a sufft reason for dismissing the employee’, save in certain situations in which an employee is unfairly selected for redundancy (e.g. discrimin
51 of 69
ERA 1996, s 98(2)(d)
Contravention of statute can be by either employer/ee for s 98(2)(d) to apply
52 of 69
ERA 1996, s 98(ZG)(2)
Employer must (a)have given employee any notice of date onw chich he intends employer to retire; (b)considered any request by employee not to be retired;(c)has considered any appeal against a decision to refuse such a request
53 of 69
RS Components v Irwin (1973)
Where employee dismissed because of re-organisation of the business, within which the employee cannot or will not fit in, his dismissal may be fair
54 of 69
Saunders v Scottish National Camps Association (1980)
Dismissal fair – a considerable prop’n of employers would take view that empt of homo should be restricted, particularly re working in close prox to children
55 of 69
Treganowan v Robert Knee (1975)
Clash of personalities = SOSR
56 of 69
Bouchaala v THF Hotel (1980)
Mistekn belief that employee did not have a work permit = SOSR
57 of 69
O’Brien v Prudential Assurance (1979)
Failure by employee to disclose medical history when asked at interview = SOSR
58 of 69
Sycamore v H Myer (1976)
Refusal of employee to accept a drop in wages from £130 to £90 per week negotiated witrh TU = SOSR
59 of 69
Scott Packaging v Patterson (1978)
Pressure froma 3rd party = SOSR
60 of 69
The Post Office v Fennel (1981)
Open to IT to classify as unfair a dismissal which demonstrates inconsistency on emlpoyer’s part even though in any and every respect the employer’s actions have been reasonabl
61 of 69
Sainsbury’s Supermarkets v Hitt (2003)
Range of reasonable responses test applies to q’n of whether employer’s investing into suspected misconduct was reaonsble in the circums
62 of 69
Iceland Frozen Foods v Jones (1982)
Reasonable response test
63 of 69
ERA 1996, s 104C
Dismissal relating to making an applicn for felxibile working arramgements – no qualifying period of service
64 of 69
ERA 1996, s 99
AUR = dismissal re taking leave for family reasons
65 of 69
ERA 1996, s 103A
AUR = dismissal re whistleblowing
66 of 69
Polkey v A.E Dayton Services (1988)
Firmly est’d absolute right of employee, save in exceptional circums, to be consulted before being dismissed notwithstanding that consultation would make no diff to the decision to dismiss him
67 of 69
ERA 1996, s 113
(a)re-instatement; (b) re-engagement (s 116: most important factors: (a)employee’s wishes; (b) whether practicable for employer to comply with the order (i.e. implied term of mutual trust and confidence)
68 of 69
ERA 1996, s 118
Compensation; s 199: basic award; s 123: compensatory award
69 of 69

Other cards in this set

Card 2

Front

Not unlawful to dismiss person aged over 65 where reason for dismissal is retirement

Back

Employment Equality (Age) Reg’ns 2006, reg 30(2)

Card 3

Front

Weeks which count towards continuity = any week during whole or part of which the mploess’ relations with employer are governed by a contract of emp’t

Back

Preview of the back of card 3

Card 4

Front

Period of req’d continuity increased from 1 to now 2 years

Back

Preview of the back of card 4

Card 5

Front

Absences for up to 26 weeks due to sickness/injury;temp cessation of work, or; in circums whereby through custom orr arrangement do not break continuity

Back

Preview of the back of card 5
View more cards

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