Unfair Dismissal

COVID-19: appropriate steps in the face of serious and imminent danger

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.

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.

Reasonableness of warnings

A tribunal did not need to ‘look behind’ a final written warning to consider its fairness.

Privilege and unfair dismissal

An email between an employer and its HR consultant was protected by litigation privilege despite indicating a pre-determined decision to dismiss.

Dismissal, lack of appeal and fairness

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.

Dismissal and medical evidence

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.

Criminal offences and unfair dismissal

An employee was fairly dismissed for some other substantial reason when he was charged with a criminal offence but never prosecuted.

COVID-19: dismissal of employee stuck abroad

The dismissal of an employee who remained abroad at the start of the pandemic was automatically unfair on health and safety grounds.

Constructive dismissal and harassment

Departing from previous authority, the EAT has held that a constructive dismissal can amount to harassment under the Equality Act.

COVID-19: unfair health and safety-related dismissal

An employee was unfairly dismissed for raising health and safety issues about lack of PPE and other workplace COVID-secure measures.

Constructive dismissal and incorporated terms

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.

Constructive dismissal: employer tries to make amends

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.

Automatically unfair health and safety dismissals

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.

Re-engagement, loss of trust and confidence and capability dismissals

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.

Fair dismissal for refusal to wear a face mask

A lorry driver was fairly dismissed for refusing to wear a face mask while on a client’s premises but still in his cab.

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.

Withholding evidence from disciplinary hearings

There was no unfairness when an employer withheld certain evidence from a disciplinary hearing that ultimately led to an employee’s dismissal.

Dismissal of military reservist was fair

A volunteer reservist was fairly dismissed for committing to a seven-week training exercise without obtaining his employer’s approval.

Refusal to postpone disciplinary hearing may make a dismissal unfair

A refusal to postpone a disciplinary because of the unavailability of the worker’s chosen companion may make a dismissal unfair.

Long-term sickness absence and failure to consider part-time working

An employer seeking to justify its discriminatory dismissal of an employee on long-term sick leave should have considered part-time working.

Effect of a successful appeal on the employment contract

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.

Evidence of right to work could have been established during appeal process

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.

Summary dismissal but no single act of gross misconduct

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.

Affirmation of contract and 'last straw' constructive dismissal

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.

Failure to disclose relationship outside work justified dismissal

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.

Non-renewal of fixed-term contracts and unfair dismissal

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.

Effective date of termination and summary dismissal

A clear communication that a contract has ended determines the effective date of termination - it’s not something that the parties can simply agree.

Protected conversations and the date of dismissal

A tribunal can hear evidence about protected conversations if the actual date of termination is disputed.

Protected conversations and 'without prejudice'

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.

Immigration Act and unfair dismissal

An employer could not claim ‘illegality’ as a fair reason to dismiss an employee when the employee failed to provide right-to work documentation.

Can an investigation be too thorough?

Including incidents in an investigatory report - which didn’t result in any disciplinary action – didn’t make the subsequent dismissal unfair.

Employer pension contributions and a 'week's pay'

Contrary to long-established practice, employer pension contributions do count towards the calculation of a ‘week’s pay’ says the EAT.

Fair dismissal for derogatory Facebook post

The dismissal of a long-serving employee following derogatory comments about her employer on Facebook was fair.

Procedural failing in dismissal process didn't make dismissal unfair

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.