Up until the early 1970's a worker who was unfairly dismissed by an employer had three choices, do nothing, sue the employer for wrongful dismissal (which is a claim in contract only), or challenge the dismissal outside of the courts (for example, by an employer wide strike initiated by a trade union). In 1968 Lord … Continue reading Why an 1888 court judgment is (unfortunately) still relevant for employees
When deciding what compensation a successful claimant can receive in an employment tribunal section 207A of the Trade Union and Labour Relations Consolidated Act 1992 allows for compensation to be increased (or decreased) by up to 25% if a party has failed to follow a Code of Practice issued by ACAS which applies in the … Continue reading ACAS uplifts in automatically unfair dismissals
A former prison officer has lost her case alleging unfair dismissal after being dismissed for what the employer alleged was gross misconduct. I am not sure, based on the judgement, that that is the right decision given the centrality of the first disciplinary allegation to the dismissal, the uncertainty on my reading of the real … Continue reading Playing Doctor
In February 2020 (back when coronavirus was barely a thing - it seems so long ago!) the Permanent Secretary of the Home Office announced in a press briefing that he had resigned from his role because continuing was no longer tenable, given a reported hostile working relationship caused by alleged activities of the Home Secretary … Continue reading What’s new in Rutnam’s constructive dismissal complaint?
In a relatively rare occurrence a UVW union member has been reinstated after making an interim relief application and an employment tribunal ruled it was likely that his claim would succeed. When an employee is dismissed then a tribunal can order (but not enforce) an employer reinstates the employee to the post they were dismissed … Continue reading Dismissed worker reinstated after manager’s anti-Union rant
A relatively recent Employment Appeal Tribunal decision (Asda v Raymond) considers whether in order to conduct a reasonable investigation an employer should not only investigate what happened but also whether there are underlying causes for the conduct (why they happened). The claimant in the case was a lorry driver and parked his lorry in a … Continue reading Pissing in the wind
When an employer engages in conduct that fundamentally undermines the contract of employment to the employee (called a repudiatory breach) then the employee has the option of resigning and claiming constructive dismissal. Effectively the employee says 'enough is enough' you have given me no option but to leave. When the employee has been continuously employed … Continue reading Constructive Dismissal: The Last Straw
When considering a complaint of unfair dismissal the first decision an employment tribunal must make long, before there is any consideration of reasonableness of the decision, is what the reason for dismissal was, and together with that, whether the reason for dismissal is for one of the potentially fair reasons for dismissal. In many, and … Continue reading Employment tribunal forgets to consider reason for dismissal
I previously worked for an employer which did not have a sickness absence policy, every case in which an employee was absent was dealt with under its disciplinary policy. This was a strange and counterproductive approach to take as it conveyed a clear message to staff that to be ill to the extent that one's … Continue reading Sickness absence: a disciplinary or capability issue?
The Burchell Test, taken from the EAT's decision in BHS v Burchell is still, over 40 years after it was first delivered, the main (but by no means only) test by which the fairness of a conduct dismissal is judged. The three-fold test sets out three questions which must each be answered positively: Did the … Continue reading Health Related Investigations
Last week I concluded my series on the Supreme Court's decision in Jhuti. In the last post I raised a question of whether Jhuti applied if a person in the hierarchy of responsibility had knowledge which the dismissing manager did not have that did not change the reason for dismissal but was a factor that could … Continue reading Attribution of Knowledge in Unfair Dismissal
In the previous two posts (here and here) I summarised the effect of the Orr judgement on the fairness of dismissals and how the the effect of Orr on how an employment tribunal will determine the reason for dismissal has been tweaked by the Supreme Court's decision late last year in Jhuti. I think 'tweak' is the right term, … Continue reading The Mind of the Decider (3): Problem Solved?
The Supreme Court's long awaited decision in Jhuti has now been delivered which is one all employee reps would do well to be aware of. The legal issue which the judgement addresses was surveyed a few weeks ago in which I expressed hope that the Court of Appeal's decision in Orr would be overruled. To recap, under … Continue reading The mind of the decider (2): The effect of Jhuti
If the Fixed Term Worker Directive, the EU law that provides for employment protection for fixed term workers, is to be believed "contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers." I have to say I have some scepticism of that statement and … Continue reading Fixed term employee dismissals
Section 94 of the Employment Rights Act 1996, if read in isolation, gives a very valuable right to all employees - the right not to be unfairly dismissed. However, by a series of qualifications what sounds a universal right is in fact only of benefit to a smaller percentage of employees. The Labour Party Manifesto … Continue reading On Labour Manifesto Commitments and Hash Brown Related Dismissals
In 2005 Mr Orr, a Black Jamaican youth worker, was dismissed by Milton Keynes Council for misconduct. He was dismissed by a Mr Cove who heard the case against Mr Orr, and at which Mr Orr was not present. Mr Cove conducted the disciplinary hearing in good faith and, as noted, this resulted in Mr … Continue reading The Mind of the Decider (1): The case of Orr
The ACAS Code of Practice on Disciplinary and Grievance Procedures has been pretty much constant for a number of years. Personally I think that is a shame as I find it decidedly lacking in vision, and little more than a checklist of what to avoid to prevent a grossly prejudicial decision; less a roadmap to … Continue reading Deferring disciplinary and grievance hearings beyond five working days – Talon v Smith
The recent Employment Appeal decision in Radia v Jefferies International Ltd is a good case study in how established 'fair process' norms will not always render a dismissal unfair. Somewhat unusually since I tend to be critical of such deviation in this case it strike me that the decision is a reasonable one and that … Continue reading Failure to investigate misconduct before dismissing employee was not unfair
When someone is dismissed from their employment for misconduct the ACAS Code of Practice states that the employer should allow the opportunity to appeal and, in most cases, the employee will be seeking for the dismissal to be overturned and to be reinstated to their formal role. The Code also requires that that appeal and … Continue reading Now you see it, now you don’t: the strange case of the vanishing dismissal (or possibly not).
In unfair dismissal law a dismissal can only be fair if the reason for dismissal is for one of five potentially fair reasons for dismissal. In an unfair dismissal claim before the tribunal can consider whether a dismissal was reasonable it must be satisfied that the dismissal was for a potentially fair reason. Only if … Continue reading Give me a reason
Many employer grievance policies have a two stage process process requiring an employee to seek to informally resolve a grievance before it is registered as a formal grievance. Sometimes, as was the case in GMB v Brown  the employer, a trade union, has a three stage process: Stage 1 - Informal resolution with line manager … Continue reading When is it unfair to follow a grievance policy?
Last month I posted a bit of a rant about Asda's decision to summarily dismiss an employee for having the temerity to share a Billy Connolly comedy routine on social media. In positive news the National Secular Society have reported that Brian Leach, the employee, has now been reinstated to the his position. Hopefully Asda … Continue reading Worker sacked for sharing Billy Connolly comedy act online reinstated
According to media reports Asda have summarily dismissed an employee (that is, have determined he has committed an act of gross misconduct) for sharing a clip on social media of Billy Connolly criticising religion (and, as is his normal form, doing it with an expletive laden lexicon). The clip in question is apparently this (although … Continue reading You’ve got to be joking?
Does the failure to give a dismissed employee a right to appeal against that dismissal make it unfair?