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Fairness of Dismissal

Fairness of Dismissal. Dr Katarzyna Gromek-Broc. Who can claim unfair dismissal? Preliminary Questions. Employees only Continuous employment Within the scope of ERA Has the employee been ‘dismissed’? Effective date of termination (EDT). Fairness of Dismissal. Two stage test of fairness

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Fairness of Dismissal

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  1. Fairness of Dismissal Dr Katarzyna Gromek-Broc

  2. Who can claim unfair dismissal?Preliminary Questions • Employees only • Continuous employment • Within the scope of ERA • Has the employee been ‘dismissed’? Effective date of termination (EDT)

  3. Fairness of Dismissal • Two stage test of fairness • First: the burden of proof is on the employer to establish the dismissal was for a ‘potentially fair reason’ s 98(1)(a) • Second: When the employer has shown the reason for the dismissal, the tribunal decides whether the employer has ‘acted reasonably or unreasonably’ in treating it as a sufficient reason to dismiss

  4. First stage of fairness The employer must establish the dismissal was for a ‘potentially fair reason’ s 98(1)(a) Potentially fair reasons: • capability or qualifications: s 98(2)(a) ERA • conduct: s 98(2)(b) ERA • retirement: Section 98 (new since Age Regulations 2006) • redundancy: s 98(2)(c) ERA • contravention of a legal duty: s 98(2)(d) ERA • ‘some other substantial reason’: s 98(1)(b) ERA

  5. Second Stage When the employer has shown the reason for the dismissal, the tribunal decides whether the employer has ‘acted reasonably or unreasonably’ in treating it as a sufficient reason to dismiss • the tribunal should decide reasonableness in the circumstances including the ‘size and administrative resources of the employer’sundertaking’ • reasonableness ‘shall be determined in accordance with equity and the substantial merits of thecase’

  6. Second stage • the ‘range of reasonable responses’ test, • the tribunal as an ‘industrial jury’ • Iceland Frozen Foods Ltd v. Jones (1983) Browne-Wilkinson J: • ‘in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer ... in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another may quite reasonably take another”

  7. Redundancy Theme • To what extent does the law question the basis of managerial decisions on redundancies? • To what extent are employers forced to contribute to the social costs incurred as a consequence of redundancy decisions?)

  8. Redundancy Qualifying conditions to claim redundancy • the right to redundancy pay is available to employees only s 135 ERA (definition of employee: 230 ERA) • 2 years’ continuous employment • excluded categories: persons under 20, retirement age • has the employee been ‘dismissed’? S 136 ERA The claim for redundancy pay must be brought within 6 months of the ‘relevant date’ s 97 ERA

  9. THE MEANING OF REDUNDANCY How to recognise a statutory redundancy situation • closure of the business as a whole • closure of the particular workplace where the employee was employed, or • a reduction in the size of the workforce

  10. Redundancy How far does the law question the basis of managerial decisions on redundancies? Moon v. Homeworthy Furniture Ltd [1977] ICR 117 EAT Kilner Brown J, there ‘cannot be any investigation into the rights and wrongs of the declared redundancy.’

  11. Redundancy • 1. The problem with the ‘place where the employee was so employed’ Nelson v. BBC [1977] ICR 649 CA if the employer’s requirement for the employee to the contractual work has ceased or diminished, the worker will be redundant

  12. Redundancy • 2. The problem with ‘work of a particular kind’ • Haden Carrier Ltd v. Cowan [1983] ICR 1 EAT • Bass Leisure v. Thomas [1994] IRLR 104 EAT • High Table Ltd v. Horst [1997] IRLR 513 CA it cannot be right to let the contract be the sole determinant, regardless of where the employee actually worked for the employer

  13. Unfair Redundancy • Redundancy is a potentially fair reason for dismissal: s 98(2)(c) ERA • But a redundancy dismissal can be unfair if • (a) it was automatically unfair (look at the new grounds) • trade union reasons: s 153 TULRCA 1992 • pregnancy or maternity: s 99 ERA • health and safety: s 100 ERA • assertion of certain statutory rights: s 104 ERA • (b) it was unreasonable • an unfair selection procedure was used • there was no prior warning or consultation with employees • redeployment was not considered

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