A tribunal wrongly rejected a claim for automatic unfair dismissal brought by an employee who was dismissed after demanding to be allowed to work from home and be furloughed during the COVID-19 pandemic.
Unfair Dismissal
The passage of time before an employee resigns will not necessarily by and of itself amount to the employee affirming their contract and therefore losing the right to claim unfair constructive dismissal.
Irrespective of whether proposed redundancies are collective or individual, consultation in a redundancy situation should take place with a workforce at a formative stage to explore ways of avoiding redundancies. And selection criteria imposed by a parent company in another country are not necessarily going to pass the same tests of reasonableness in the UK.
The EAT re-examines the current legal position surrounding the retraction of a resignation made in the heat of the moment. Subjective intention is irrelevant and a reasonable bystander test applies.
An employee was not unfairly dismissed when his employer extended his termination date multiple times to give him a chance to return to work from sickness absence.
The lack of a meeting between an employee and the dismissing officer will not in and of itself, in all circumstances, make a dismissal unfair.
An employee made redundant in the early months of the COVID-19 pandemic was unfairly dismissed because her employer hadn’t considered furloughing her as an alternative to redundancy.
A letter amounted to an effective letter of termination for the purposes of an unfair dismissal claim, despite the letter being marked ‘without prejudice.’
It was not unfair to dismiss an employee after reopening a previously concluded disciplinary process that had led to a final written warning.
An employee dismissed for leaving work and refusing to return because of COVID-19-related concerns was not automatically unfairly dismissed.
A successful appeal against a dismissal will automatically result in reinstatement back into employment unless the employee objectively and unequivocally withdraws their appeal against dismissal before the appeal is decided. This remains the case even where the employee expressly says to the appeal decision maker that they do not want to return to work.
An employee was fairly dismissed for failing to disclose his bankruptcy, despite the absence of an express contractual requirement or policy requiring him to do so.
A fundamental breach of contract can be established even where the employer’s actions do not indicate an intention to end the employment relationship.
A failure to make reasonable adjustments as part of a dismissal process doesn’t mean that the dismissal itself is necessarily unfair.
An employee who requests voluntary redundancy does not necessarily have no reasonable prospects of success in a claim for unfair dismissal.
The dismissal of a care home employee for refusing to be vaccinated against COVID-19 was fair.
An employee was unfairly dismissed after raising health and safety concerns about working during lockdown.
An employee’s dismissal for using a grievance process in a frivolous and vexatious manner was fair.
An employee had not been automatically unfairly dismissed because of her employer’s refusal to allow her to work from home during the pandemic. Her belief that there were circumstances of serious and imminent danger was not objectively reasonable given that her employer had assessed the risks and addressed the need for increased levels of hygiene and social distancing.
The dismissal of an employee was fair because he’d acted in ‘wilful disregard’ of an anti-corruption policy, even though he’d not deliberately intended to breach the policy and had no corrupt intent.
An employee can bring a claim for automatic unfair dismissal if they are instructed to infringe their statutory rights, even if the infringement has not actually occurred.
A tribunal did not need to ‘look behind’ a final written warning to consider its fairness.
An email between an employer and its HR consultant was protected by litigation privilege despite indicating a pre-determined decision to dismiss.
Where a dismissal is because of an irretrievable breakdown in the employer/employee relationship, the failure to offer/carry out an appeal post-dismissal will not always render a dismissal unfair.
Up to date medical evidence is vital when defending the fairness of an ill-health capability dismissal, although only if it’s obtained before a dismissal.
An employee was fairly dismissed for some other substantial reason when he was charged with a criminal offence but never prosecuted.
The dismissal of an employee who remained abroad at the start of the pandemic was automatically unfair on health and safety grounds.
Departing from previous authority, the EAT has held that a constructive dismissal can amount to harassment under the Equality Act.
An employee was unfairly dismissed for raising health and safety issues about lack of PPE and other workplace COVID-secure measures.
An incorporated collectively agreed term was not apt for incorporation into an individual employment contract so as to enable an employee to rely on a breach of it as giving rise to a constructive dismissal claim.
Where the actions of an employer amount to a fundamental breach of contract, nothing that the employer does after that point can cure that breach.
An employee dismissed because of the friction caused in the workplace by the way he’d instituted a new health and safety regime had been automatically unfairly dismissed.
An employer’s genuine and rational lack of belief in an employee’s capability can render it not practicable for the employee to be re-engaged following an unfair dismissal.
A lorry driver was fairly dismissed for refusing to wear a face mask while on a client’s premises but still in his cab.
The dismissal of a teacher who had indecent images of children on his computer was unfair.
If an internal appeal against dismissal overturns the dismissal, then in law it’s as if there was no dismissal – even if the employee makes it clear when appealing that they have no intention of returning to their job whatever the outcome of the appeal.
Where there has been an irretrievable breakdown in a working relationship, a complete lack of any procedure may not render a subsequent dismissal unfair.
A dismissal based on anonymous witness evidence will not necessarily be unfair, even where that witness declines to participate in the disciplinary process.
Work carried out before a formally agreed start date may not count for continuity of employment purposes.
Just because a last straw was not actually a last straw did not mean that a constructive unfair dismissal claim could not proceed.
For an employee to have been ‘designated’ by their employer to carry out health and safety activities, he or she must have been selected by the employer to carry out specific activities in connection with preventing or reducing risks to health and safety at work, over and above their ordinary job duties.
In an unfair dismissal case, an investigator’s failure to share a material fact with the dismissing officer could be relevant when assessing whether the employer had acted reasonably in dismissing.
An employee charged with a criminal offence was fairly dismissed due to the risk to the employer’s reputation.
A separate investigatory hearing and disciplinary hearing is not required in every case by right.
An employer’s unreasonable disciplinary investigation breached the implied term of trust and confidence which entitled the employee to resign and successfully claim unfair constructive dismissal.
In upholding a tribunal’s decision to dismiss all an employee’s claims, the Court of Appeal provide useful guidance on fair conduct procedures and rescuing appeals.
An employee was automatically unfairly dismissed because of his union activities even though neither the manager conducting the disciplinary hearing nor the manager who dismissed the appeal were motivated by prejudice against the employee because of his union activities.
Changes to an investigator’s report into potential misconduct, made at the suggestion of an in-house lawyer, did not render an employee’s subsequent dismissal unfair
The dismissal of a nurse who gave a patient a Bible and proselytised (tried to convert people to another religion) her religious views was fair and did not breach European law.
Protection from dismissal for asserting a statutory right only applies where the employee alleged an actual breach of statute, not a threatened one.
A ‘conduct’ dismissal can encompass serious neglect, omission or carelessness - here a failure to meet the role’s requirements.
The dismissal for gross misconduct of a long-serving employee for failing a routine drug test was unfair.
Where an employee had been dismissed on the ground of medical incapacity while his contractual entitlement to long-term disability benefits was ongoing, it was appropriate to imply a term into his employment contract to restrict the employer’s contractual power to dismiss.
There was no unfairness when an employer withheld certain evidence from a disciplinary hearing that ultimately led to an employee’s dismissal.
A volunteer reservist was fairly dismissed for committing to a seven-week training exercise without obtaining his employer’s approval.
A refusal to postpone a disciplinary because of the unavailability of the worker’s chosen companion may make a dismissal unfair.
An employer seeking to justify its discriminatory dismissal of an employee on long-term sick leave should have considered part-time working.
Where a contract of employment provided for a disciplinary process and a right of appeal against dismissal, it was implicit that a successful appeal would, without more, revive the employment relationship and extinguish the dismissal.
Where an employee was dismissed because the employer had a reasonable belief that they were not entitled to work in the UK, the employer should offer an appeal to allow the employee the chance to prove that at all relevant times they in fact had the right to work in the UK.
The summary dismissal of an employee for a series of misconduct issues was fair (although possibly wrongful), even though no single act amounted to gross misconduct and he had an unblemished disciplinary record.
The ‘last straw’ doctrine in constructive dismissal cases allows a claimant to rely on the totality of an employer’s acts, even though earlier breaches by the employer may have been affirmed, so long as the final act forms part of a series.
A school was entitled to summarily dismiss a head teacher for her failure to disclose a personal relationship with a sex offender outside of work.
Simply complying with the non-discrimination regime of the Fixed-term Employees Regulations doesn’t make a dismissal at the end of a fixed term contract fair.
A clear communication that a contract has ended determines the effective date of termination - it’s not something that the parties can simply agree.
A tribunal can hear evidence about protected conversations if the actual date of termination is disputed.
An employer cannot pick and choose when the ‘without prejudice’ rule applies to selectively use information gained during a protected conversation to its advantage in subsequent tribunal proceedings.
An employer could not claim ‘illegality’ as a fair reason to dismiss an employee when the employee failed to provide right-to work documentation.
Including incidents in an investigatory report - which didn’t result in any disciplinary action – didn’t make the subsequent dismissal unfair.
Contrary to long-established practice, employer pension contributions do count towards the calculation of a ‘week’s pay’ says the EAT.
The dismissal of a long-serving employee following derogatory comments about her employer on Facebook was fair.
Elmore v The Governors of Darland High School
Neither a failure to explain why an employee’s appeal had been rejected nor a failure to call witness evidence of the appeal at the tribunal hearing made an employee’s dismissal unfair.