Unfair Dismissal

Re-engagement and loss of trust and confidence

A breakdown in trust and confidence is relevant to the practicability of re-engagement, even if the dismissal was for capability and not for misconduct.

Dismissal and internal appeals

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.

Dismissal and absence of procedure

Where there has been an irretrievable breakdown in a working relationship, a complete lack of any procedure may not render a subsequent dismissal unfair.

Witness anonymity and unfair dismissal

A dismissal based on anonymous witness evidence will not necessarily be unfair, even where that witness declines to participate in the disciplinary process.

Continuous employment: working before start date

Work carried out before a formally agreed start date may not count for continuity of employment purposes.

Constructive dismissal and the 'last straw'

Just because a last straw was not actually a last straw did not mean that a constructive unfair dismissal claim could not proceed.

Automatic unfair dismissal: designation to perform health and safety functions

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.

Attribution of knowledge: relevance to fairness of dismissal

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.

Pending criminal changes and dismissal

An employee charged with a criminal offence was fairly dismissed due to the risk to the employer’s reputation.

Unfair dismissal and investigations

A separate investigatory hearing and disciplinary hearing is not required in every case by right.

Constructive dismissal: procedural fairness during investigation

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.

Adequacy of investigation and appeal procedure

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.

Investigating manager's anti-union motivation could be attributed to employer

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 investigation report did not make dismissal unfair

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

Dismissal for proselytising religious views was fair

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.

Asserting a statutory right and automatic unfair dismissal

Protection from dismissal for asserting a statutory right only applies where the employee alleged an actual breach of statute, not a threatened one.

'Conduct' dismissal for failure to meet expectations of the job

A ‘conduct’ dismissal can encompass serious neglect, omission or carelessness - here a failure to meet the role’s requirements.

Dismissal for failing drug test was unfair

The dismissal for gross misconduct of a long-serving employee for failing a routine drug test was unfair.

Capability dismissal and long-term disability

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.

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