Unfair Dismissal
1 Fairness of Dismissal – General Points
1.1 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
AND
• Shall be determined in accordance with equity and the substantial merits of the case
1.2 Iceland Frozen foods v Jones [1982] IRLR 439
HSBC v Madden
Post Office v Foley [2000 ]IRLR 827 CA
London Ambulance Services NHS Trust v Small [2009] EWCA Civ 220.
1.3 Key word is REASONABLY and can be broken down into two basic questions:
1.3.1 Did the employer use a fair procedure?
1.3.2 Did the employer’s decision to dismiss fall within the range of reasonable responses open to a reasonable employer?
1.4 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.
1.5 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 [1977] AC 931
1.6 Size of undertaking
Tribunal will take into account the size and administrative resources of the undertaking.
1.7 Does reason justify dismissal ?
May be other sanctions that could be appropriate.
1.8 Pressure on Employer
Tribunal must not take into account any pressure put on employer by way of threat of or industrial action.
1.1 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
AND
• Shall be determined in accordance with equity and the substantial merits of the case
1.2 Iceland Frozen foods v Jones [1982] IRLR 439
HSBC v Madden
Post Office v Foley [2000 ]IRLR 827 CA
London Ambulance Services NHS Trust v Small [2009] EWCA Civ 220.
1.3 Key word is REASONABLY and can be broken down into two basic questions:
1.3.1 Did the employer use a fair procedure?
1.3.2 Did the employer’s decision to dismiss fall within the range of reasonable responses open to a reasonable employer?
1.4 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.
1.5 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 [1977] AC 931
1.6 Size of undertaking
Tribunal will take into account the size and administrative resources of the undertaking.
1.7 Does reason justify dismissal ?
May be other sanctions that could be appropriate.
1.8 Pressure on Employer
Tribunal must not take into account any pressure put on employer by way of threat of or industrial action.