Fairness of Dismissal – General Points
The ERA 1996 s98 (4) states:
The determination of the question of whether the dismissal is fair or not (having regard to the reason shown by the employer) shall depend on whether:
In the circumstances of the case
Including the size and administrative resources of the employer’s undertaking
The employer acted reasonably or unreasonably
In treating it as a sufficient reason for dismissing the employee
Shall be determined in accordance with equity and the substantial merits of the case
Iceland Frozen foods v Jones  IRLR 439
HSBC v Madden
Post Office v Foley [2000 ]IRLR 827 CA
London Ambulance Services NHS Trust v Small  EWCA Civ 220.
Key word is REASONABLY and can be broken down into two basic questions:
Did the employer use a fair procedure?
Did the employer’s decision to dismiss fall within the range of reasonable responses open to a reasonable employer?
Important to note that the burden of proof regarding fairness is neutral. However all this really means is that the employer does not bear the burden when the facts are doubtful or in dispute. The reality is that since the employer made the decision and generally has the greater access to information, the tribunal effectively expects the employer to show why the decision was made and how it was reasonable.
Matters known to Employer
Can only rely on those matters known at the time of dismissal. Cannot rely on matters subsequently discovered (cf wrongful dismissal claim).
W Devis & Sons v Atkins  AC 931
Size of undertaking
Tribunal will take into account the size and administrative resources of the undertaking.
Does reason justify dismissal ?
May be other sanctions that could be appropriate.
Pressure on Employer
Tribunal must not take into account any pressure put on employer by way of threat of or industrial action. S107 ERA
Breach of Contract
Consider length of service of employee.
Consideration of previous similar situations.
Procedural Unfairness – General
It is a vital feature of employment law that the employer must operate a fair procedure when dismissing an employee. An employer will not only have to consider the employer’s own contractual procedures but now will also need to be aware of the importance of the ACAS Code and Guidelines.
ss37 and 38 of ERA 2004
The ACAS Code and Guidelines
Any relevant code should be considered by tribunal.
New statutory code was issued to accompany the Employment Act 2008.
Not legally binding and failure to follow code will not make any person or organisation liable to proceedings.
Tribunal will however take code into account when considering cases.
More importantly a Tribunal will be able to increase or decrease an award by up to 25% where it feels that an employer or employee had unreasonably failed to follow the code.
Common sense approach to industrial relations and recommends informal resolution procedures initially followed by formal procedures.
Includes the following:
On disciplinary procedures:
Deal with issues promptly and consistently
Establish the facts before taking action
Make sure that the employee is informed of the allegations
Hold a meeting with the employee
Allow the employee to be accompanied and to state their case
Make sure that the disciplinary action is appropriate to the case
Provide the employee with an opportunity to appeal
The employee should clearly inform their line manager of nature of grievance
Employee should be allowed to bring a companion to any hearing
Action taken should be appropriate to the grievances
An appeal system should be in place.
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