Unfair Dismissal

Constructive dismissal and affirmation

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.

Redundancy consultation must be with the workforce at the formative stage

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.

Resignation in the heat of the moment

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.

Postponement of employee's termination date

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.

Meeting with employee prior to dismissal

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.

Redundancy and the duty to consider furlough

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.

Dismissal and 'without prejudice' letter

A letter amounted to an effective letter of termination for the purposes of an unfair dismissal claim, despite the letter being marked ‘without prejudice.’

Disciplinary process and double jeopardy

It was not unfair to dismiss an employee after reopening a previously concluded disciplinary process that had led to a final written warning.

COVID-19: dismissal for refusal to return to work

An employee dismissed for leaving work and refusing to return because of COVID-19-related concerns was not automatically unfairly dismissed.

Internal appeals and 'vanishing' dismissals

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.

Dismissal for failure to disclose bankruptcy

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.

Constructive dismissal and the fundamental breach

A fundamental breach of contract can be established even where the employer’s actions do not indicate an intention to end the employment relationship.

Reasonable adjustments and fairness of dismissal

A failure to make reasonable adjustments as part of a dismissal process doesn’t mean that the dismissal itself is necessarily unfair.

Voluntary redundancy and unfair dismissal

An employee who requests voluntary redundancy does not necessarily have no reasonable prospects of success in a claim for unfair dismissal.

COVID-19: dismissal for refusal to be vaccinated

The dismissal of a care home employee for refusing to be vaccinated against COVID-19 was fair.

COVID-19: raising health and safety concerns

An employee was unfairly dismissed after raising health and safety concerns about working during lockdown.

Raising grievances and impact on the fairness of dismissal

An employee’s dismissal for using a grievance process in a frivolous and vexatious manner was fair.

COVID-19: automatic unfair dismissal and refusal to allow homeworking

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.

Dismissal for breach of anti-corruption policy

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.

Asserting breach of a statutory right: when does the claim crystalise?

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.

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