Unfair Dismissal

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.