Summary Where a resignation has been clearly and unequivocally given, and the employer deems it to have been seriously meant, it is not necessary to allow it to be retracted to avoid an unfair dismissal claim. Law In order to bring a claim for unfair dismissal, an employee must first be dismissed under section 95 of the ERA 1996. That section provides that dismissal occurs where: (a)    the contract under which they are employed is terminated by the employer (whether with or without…

Summary When an employee has agreed to the mutual termination of their employment, an employer’s final confirmation letter stating “dismissal” will not change that agreement, so long as evidence shows that the employee freely consented and was fully informed about that termination. Law To bring a claim for unfair dismissal there must be a “dismissal” for the purposes of section 95 of the Employment Rights Act 1996.  A dismissal takes place when “ … the contract under which [the employee] is…

Summary The refusal of suitable alternative employment during redundancy removes the need to pay statutory redundancy pay; this cannot be restored post dismissal if the employee changes their mind. Law Redundancy payment Under section 141 of the Employment Rights Act, an employee who is made redundant can lose their entitlement to a redundancy payment if their employer makes them an offer of alternative employment that is suitable for them, and they unreasonably refuse it. Section 141…

Summary In gross misconduct cases, employers should be able to show that an employee was aware that their conduct could result in dismissal, either by forewarning them, providing for it in a written policy, training or otherwise. Law Section 98 of the Employment Rights Act 1996 requires employers to have one of the fair reasons specified in the Act (such as conduct, as in this case) for this dismissal, and to also follow a fair and reasonable process in coming to that dismissal. Where…

Summary Extending a decision to dismiss seven times, and over the course of a year, does not necessarily mean the decision falls outside of the range of reasonable responses, where the employer has taken all appropriate action to assist the employee in returning to work. Law  Section 98 of the Employment Rights Act 1996 (ERA) requires an employment tribunal (ET) to decide two things: was there a fair reason to terminate employment and did the employer act reasonably in doing this. The…

Summary The duty to make reasonable adjustments applies to the right to be accompanied at a formal hearing, particularly in cases where an employee has been suspended and prohibited from contacting their colleagues. Law Under the Employment Rights Act 1996, section 98, employers must have a fair reason for dismissal as well have followed a fair and reasonable process in coming to that dismissal. The case of British Home Stores v Burchell [1978] provides the following tests to be applied in…

Summary It is not always necessary for the disciplinary decision maker to personally hold the disciplinary hearing, although it would be an imperfection in the process. Such imperfections however can be resolved via a properly considered appeal.   Law The Employment Rights Act 1996, section 98, protects qualifying employees from unfair dismissal by requiring employers to have both a fair reason for the dismissal and to have followed a reasonable process when dismissing for that reason.…

Summary It is permissible for employers to use evidence taken from an employees Facebook page in disciplinary proceedings where there is not a reasonable expectation on the employees’ part that their posts would always be private. Law Law relevant to this case includes unfair dismissal (section 98 of the Employment Rights Act 1998), contributory fault deductions under the case of Polkey v AE Dayton, race discrimination under the Equality Act, and the European Convention on Human Rights (…

Summary The fact that a mental health impairment (anxiety) arises as a result of issues centred on the workplace does not preclude that impairment from being a disability simply because the individual is no longer employed in that workplace. Law Paragraph 2 of Schedule 1 to the Equality Act 2010 (EqA) provides: “The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest…

Summary A relevant agreement that calculates final holiday entitlement and pay owed under the Working Time Regulations 1998 (WTR) cannot be used to pay less than an employee is owed under the WTR. Law Note that at the time of this case, the EU Working Time Directive and its case law were applicable, notwithstanding Brexit, pursuant to the European Union (Withdrawal) Act 2018, in the absence of regulations disapplying the same. The Working Time Directive 2003/88/EC provides at Article 7:…

Summary When making redundancies in the course of a restructure, employers must establish that the ‘work of a particular kind’ has genuinely ceased or diminished before concluding that a redundancy is necessary. It is not sufficient evidence to show the amalgamation of teams and the addition of functions to an existing post; employers must show there is less work of a particular kind.   Law Section 139 Employment Rights Act 1996 (ERA) (as is relevant to this case): (1)For the purposes of…

Summary Where a redundancy process is accelerated, and as a result not carried out in accordance with organisational policy, in order to avoid paying out a substantial payment under the local government pension scheme, it can result in successful claims for both unfair dismissal and age discrimination. Law Unfair dismissal Employment Rights Act 1996 section 98 ERA provides (so far as relevant) as follows: (1) In determining for the purposes of this Part whether the dismissal of an…

Summary Continuity of service cannot be broken by a sham resignation; it must be a genuine and clean break for it to bring service to an end. When continuity has not been broken, failing to follow a proper procedure to dismiss an employee with over two years service will render the dismissal unfair, and unless the employer can show evidence that a dismissal would have been fair had a proper process been followed, 100% compensation will be awarded. Law Employment Rights Act 1996 (ERA)…

Summary An employer’s failure to communicate properly a reasonable management instruction, and hasty disciplinary process, resulted in an unfair dismissal for a matter that otherwise would have been within the band of reasonable responses. Law Unfair dismissal Section 94 Employment Rights Act 1996: (1)An employee has the right not to be unfairly dismissed by his employer. Section 98 of the Employment Rights Act 1996: (1) In determining for the purposes of this Part whether the dismissal…

Summary An employer’s efforts in following a thorough a proper process managing a case of long-term sickness absence, and ultimately dismissal, led to a successful defence of an unfair dismissal claim. Law Employment Rights Act 1996 (ERA) Section 98(1) (so far as is relevant to this case) (1)In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a)the reason (or, if more than one, the principal reason) for…

Summary Is a management style that involves humiliation and intimidation ever appropriate? No, an ET has said, especially when it is compounded by a poor grievance procedure and a failure to address the manager's behaviour. Law Section 95(1)(c) of the Employment Rights Act 1996: An employee is dismissed by their employer if ‘the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by…

Summary Employers who fail to question further an ambiguous resignation can find themselves liable for unfair dismissal if they treat the employment as at an end. Law Where an employee has used unambiguous words to resign their employment, they cannot say they did not mean what they appeared to mean. Sovereign House Security Limited v Savage [1989] Unambiguous words of resignation spoken in the heat of the moment did not necessarily amount to a resignation; an employee should be given an…

Summary EAT confirms that in certain circumstances, it is not unfair to reopen an already concluded disciplinary process and issue a new outcome of dismissal, where the previous decision was to give a final written warning. Law Section 98 (4) Employment Rights Act 1996 (ERA) (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)depends on…

Summary In this case relating to a ‘without prejudice’ discussion involving a settlement offer, the EAT has confirmed that the protection of the ‘without prejudice’ rule will only not be applied where there is a clear case of unambiguous impropriety. Law The 'Without Prejudice' rule Communications that take place under this rule, when properly applied, fall within legal privilege and therefore cannot be admitted as evidence before a tribunal. This is to encourage litigants to settle their…

  Summary The Court of Appeal (CoA) has upheld an ET and EAT judgment that an employee was not automatically unfairly dismissed following their refusal to come into work during the first Covid-19 lockdown. Law and context Employees must have worked for an organisation for at least a period of two years in order to bring a claim of unfair dismissal. However, they can claim automatic unfair dismissal from day one of their employment in certain, prescribed circumstances. Section 100(1)(d) or…

Summary The Court of Appeal had to decide if a sufficiently widely drawn COT3 could include a claim for victimisation that did not arise directly, or indirectly, out of the appellants employment with the respondent, or if that claim was outside this agreement, and therefore capable of consideration by a tribunal. Law Investors Compensation Scheme Ltd. v West Bromwich Building Society [1998], the process of interpreting contracts involves: “… the ascertainment of the meaning which the…

Summary The EAT was called upon to consider what amounts to withdrawal of an appeal against a conduct dismissal, and if not withdrawn and successful, does that mean the dismissal “vanishes”? Law Folkestone Nursing Home Ltd v Patel [2018] Mr Patel was dismissed. He appealed. He was informed that the appeal had been upheld by  letter. The Court of Appeal concluded that the original dismissal was no longer of any effect as a result of the successful appeal/ Sales LJ held: “I consider that……

Summary In this case involving constructive unfair dismissal, the ET had to consider if a repudiatory breach of contract had occurred when a manager excessively contacted an employee on long term sick, demanding that they ask their doctor to review their medication, and asking them to be mindful of their Facebook posts as they were ‘supposed to be sick’.   Law Employment Rights Act 1996 Section 95(1) An employee is dismissed by his employer if the employee terminates the contract under…

Summary The EAT had to consider if a settlement agreement could include a claim that had not yet arisen at the time it was signed, or if it was necessary for the employee to know they had a claim at the time of signing it? Law The Equality Act 2010: S. 147 (2)   A qualifying settlement agreement is a contract in relation to which each of the conditions in subsection (3) is met. (3)  Those conditions are that— (a)  the contract is in writing, (b)  the contract relates to the particular…

Summary The EAT had to consider if an employer’s decision on redundancy selection criteria that inevitably created a pool of one, made without consultation with affected employees, was sufficient for meaningful consultation and a fair dismissal.    Law Section 98 Employment Rights Act 1996 provides: (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason…for the dismissal, and (b) that it is…

Summary The EAT considered if dismissal for lateness was reasonable, when that lateness included instances of 2-3 minutes. Rejecting the argument that this was disproportionate, it was held that employers do not have to show damage as a result of the misconduct in order for dismissal to be reasonable Law Section 98 Employment Rights Act 1996 provides: (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a…

Summary The Employment Tribunal once again demonstrates the vital importance of having relevant policies and procedures in place, finding against the respondent in a matter of unfair dismissal where these were not. The Employment tribunal also found that the act of liking and sharing a Facebook post can amount to a protected disclosure under whistleblowing laws. Law Unfair dismissal Employment Rights Act 1998 (ERA) Section 98(1): In determining for the purposes of this Part whether…

Please note that this case report relates to a matter deal within the High Court and then Court of Appeal, outside of the Employment Tribunal system. This is due to the nature of the relief sought (an injunction to prevent action). It is however highly relevant to employers considering changing agreed terms and conditions. Summary The Court of Appeal has overturned an injunction placed on Tesco by the High Court, preventing them from going through a process of fire and re-hire. This was…

Summary In finding that a redundancy dismissal was a ‘total sham’, the Employment Appeal Tribunal (EAT) held that the Employment Tribunal (ET) did not err in law in awarding an uplift of 25% for failure to follow the Acas code of practice on disciplinary and grievances Law Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) Section 207A - Effect of failure to comply with Code: adjustment of awards (1) This section applies to proceedings before an employment tribunal…

Summary An employment tribunal has upheld a claim for indirect sex discrimination and constructive unfair dismissal brought by a working mother, who had been required by her manager to start working weekend shifts, despite her lack of access to childcare at the weekend. Law Section 19 Equality Act 2010 (EqA) Indirect discrimination – (1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant…