UNFAIR DISMISSAL
(1) Has the claim been brought within the time limit?
3 months from EDT
(2) Is the employee eligible to bring the claim? burden of proof is on the
employee
- Employee?
- Not in an excluded class?
- 2+ years continuous employment
(3) Has there been dismissal?- burden of proof is on the employee
- Expiry & non-renewal of fixed term contract
- Completion of a specific task
- Actual (ambiguous language? see Futty v Brekkes)
- Constructive (CD) - repudiatory breach by Employer which Employee accepts and
in response to which Employee resigns within a reasonable time (if not, deemed to
have ‘waived’ breach)- because its is assumed that employee has affirmed breach.
Includes ‘last straw’ doctrine – accumulation of breaches (Abbey National v Robinson)
(4) Was there a fair reason for the dismissal, the burden of proof is on the
employer:
- Conduct
- Capability (Sickness/ Incompetence)
- Redundancy (Job/ PoW/ Employee) - N.B. If so, consider also if there is Redundancy
Payment claim
- IIlegality (e.g. lorry driver banned from driving)
- Some Other Substantial Reason [SOSR] – business efficacy reasons
-
(5) Did Employer act reasonably in dismissing Employee? – this is a question of
fact for Tribunal
- s.98(4) ERA 1996 - did the Employers actions fall within range of reasonable responses
(RORR) [Iceland Frozen Foods v Jones] taking into account:
(i) Size & administrative resources of employer – big employers should have
proper policies & procedures/ flexibility to accommodate staff – opposite for
small employers where ET more sympathetic.
(ii) Equity – were others in similar situation treated in the same way?
(iii) Substantial merits – long serving Employees (5+ yrs) with previous good work
record should be more sympathetically treated.
(iv) Other circumstances? – fair procedure followed (see below)
(v) Sufficiency of reason? – did the punishment fit the crime?
(1) Has the claim been brought within the time limit?
3 months from EDT
(2) Is the employee eligible to bring the claim? burden of proof is on the
employee
- Employee?
- Not in an excluded class?
- 2+ years continuous employment
(3) Has there been dismissal?- burden of proof is on the employee
- Expiry & non-renewal of fixed term contract
- Completion of a specific task
- Actual (ambiguous language? see Futty v Brekkes)
- Constructive (CD) - repudiatory breach by Employer which Employee accepts and
in response to which Employee resigns within a reasonable time (if not, deemed to
have ‘waived’ breach)- because its is assumed that employee has affirmed breach.
Includes ‘last straw’ doctrine – accumulation of breaches (Abbey National v Robinson)
(4) Was there a fair reason for the dismissal, the burden of proof is on the
employer:
- Conduct
- Capability (Sickness/ Incompetence)
- Redundancy (Job/ PoW/ Employee) - N.B. If so, consider also if there is Redundancy
Payment claim
- IIlegality (e.g. lorry driver banned from driving)
- Some Other Substantial Reason [SOSR] – business efficacy reasons
-
(5) Did Employer act reasonably in dismissing Employee? – this is a question of
fact for Tribunal
- s.98(4) ERA 1996 - did the Employers actions fall within range of reasonable responses
(RORR) [Iceland Frozen Foods v Jones] taking into account:
(i) Size & administrative resources of employer – big employers should have
proper policies & procedures/ flexibility to accommodate staff – opposite for
small employers where ET more sympathetic.
(ii) Equity – were others in similar situation treated in the same way?
(iii) Substantial merits – long serving Employees (5+ yrs) with previous good work
record should be more sympathetically treated.
(iv) Other circumstances? – fair procedure followed (see below)
(v) Sufficiency of reason? – did the punishment fit the crime?
