EMPLOYMENT LAW
REVISION NOTES
LPC (University of Law)
Flowcharts
Wrongful Dismissal
Unfair Dismissal
Redundancy
Direct Discrimination
Indirect Discrimination
Harassment
Reasonable Adjustments
Discrimination Arising from Disability
TUPE Dismissals
Contracts of Employment
Termination of Employment
Wrongful Dismissal
Unfair Dismissal
Redundancy
Discrimination
Disability Discrimination
Transfer of Undertakings
Practice and Procedure
, WRONGFUL DISMISSAL
Has there been a dismissal?
Actual Dismissal Constructive Dismissal
The employee has been actually dismissed The employer has committed a repudiatory
because the employer has terminated their breach, so that the employee was entitled
contract to resign in response and did so within a
reasonable time
Was the dismissal wrongful?
No/Insufficient Notice Before End of Fixed Term Constructive
The employer gave no notice, The employee has been The employer’s repudiatory
notice below statutory dismissed before the expiry of breach, will automatically
minimum (s.86 ERA), or below their fixed term contract, not in render a constructive dismissal
contractual notice accordance with a break clause wrongful
Ensure the dismissal cannot be objectively justified because
of a repudiatory breach committed by the employee
What are the potential damages?
Damages will be awarded under the normal contractual rules, i.e. to
put the employee in the same position as they would have been if
the contract was properly performed (Hadley v Baxendale)
Add Subtract
Net wages / salary i.e. after tax and NI Payments made by the employer in lieu
Accrued holiday pay To account for duty to mitigate
Contractual losses i.e. any entitlements to To account for accelerated receipt
bonus, commission, pension, health Set off against an overlapping claim for
insurance, company car unfair dismissal
Claim could be increased by up to 25% for Claim could be decreased by up to 25% for
employer’s unreasonable failure to follow employee’s unreasonable failure to follow
Acas Code of Practice Acas Code of Practice
Note: The maximum award available in the
Employment Tribunal is £25,000
, UNFAIR DISMISSAL
Can the employee bring a statutory claim?
The employee must demonstrate that they are an employee (s.94)
with 2+ years continuous employment (s.108(1)), not in an excluded
class, and have begun the claim within 3 months of the EDT (s.111)
Has there been a dismissal?
Actual Dismissal Constructive Dismissal
Can the employer show a potentially fair reason for the dismissal?
Capability or Qualifications s.98(2)(a) Conduct s.98(2)(b)
Including by reference to skill, aptitude, Including a serious or pattern of minor
health, any other quality incidents (Quintiles Commercial v Barongo)
Redundancy s.98(2)(c) Illegality s.98(2)(d) SOSR s.98(1)(b)
Tribunal will only satisfy itself Because it would be illegal for Some other substantial reason
that this was the reason the employee to do that work that is not whimsical, unworthy
Did the employer act reasonably in dismissing the employee?
Apply s.98(4) Apply Iceland Frozen Foods v Jones
Consider the size and resources of the Consider the range of reasonable responses
employer, equity, and the substantial and whether the response of the employer
merits of the case fell within that range
Was a fair procedure followed in dismissing the employee?
Capability Conduct
If sickness – Alternative work offered? Was ACAS Code of Practice followed? An
If incompetence – Training offered? investigation carried out? Warnings given?
Redundancy Illegality Some Other Substantial Reason
Was a fair and objective Was the offence of dishonesty? Were the commercial needs of
selection criteria applied? Is there risk of reputational the employer weighed against
(Polkey v A E Dayton) damaged? detriment to employees?
What are the potential remedies?
Reinstatement/Re-engagement Basic Award Compensatory Award
Where the employee gets their age factor x “just and equitable” (s.123(1))
job back, or a different job with 1 week gross pay x (max £538) to a maximum of £88,519 or 52
the same employer complete yrs’ service (max 20) weeks’ gross pay
REVISION NOTES
LPC (University of Law)
Flowcharts
Wrongful Dismissal
Unfair Dismissal
Redundancy
Direct Discrimination
Indirect Discrimination
Harassment
Reasonable Adjustments
Discrimination Arising from Disability
TUPE Dismissals
Contracts of Employment
Termination of Employment
Wrongful Dismissal
Unfair Dismissal
Redundancy
Discrimination
Disability Discrimination
Transfer of Undertakings
Practice and Procedure
, WRONGFUL DISMISSAL
Has there been a dismissal?
Actual Dismissal Constructive Dismissal
The employee has been actually dismissed The employer has committed a repudiatory
because the employer has terminated their breach, so that the employee was entitled
contract to resign in response and did so within a
reasonable time
Was the dismissal wrongful?
No/Insufficient Notice Before End of Fixed Term Constructive
The employer gave no notice, The employee has been The employer’s repudiatory
notice below statutory dismissed before the expiry of breach, will automatically
minimum (s.86 ERA), or below their fixed term contract, not in render a constructive dismissal
contractual notice accordance with a break clause wrongful
Ensure the dismissal cannot be objectively justified because
of a repudiatory breach committed by the employee
What are the potential damages?
Damages will be awarded under the normal contractual rules, i.e. to
put the employee in the same position as they would have been if
the contract was properly performed (Hadley v Baxendale)
Add Subtract
Net wages / salary i.e. after tax and NI Payments made by the employer in lieu
Accrued holiday pay To account for duty to mitigate
Contractual losses i.e. any entitlements to To account for accelerated receipt
bonus, commission, pension, health Set off against an overlapping claim for
insurance, company car unfair dismissal
Claim could be increased by up to 25% for Claim could be decreased by up to 25% for
employer’s unreasonable failure to follow employee’s unreasonable failure to follow
Acas Code of Practice Acas Code of Practice
Note: The maximum award available in the
Employment Tribunal is £25,000
, UNFAIR DISMISSAL
Can the employee bring a statutory claim?
The employee must demonstrate that they are an employee (s.94)
with 2+ years continuous employment (s.108(1)), not in an excluded
class, and have begun the claim within 3 months of the EDT (s.111)
Has there been a dismissal?
Actual Dismissal Constructive Dismissal
Can the employer show a potentially fair reason for the dismissal?
Capability or Qualifications s.98(2)(a) Conduct s.98(2)(b)
Including by reference to skill, aptitude, Including a serious or pattern of minor
health, any other quality incidents (Quintiles Commercial v Barongo)
Redundancy s.98(2)(c) Illegality s.98(2)(d) SOSR s.98(1)(b)
Tribunal will only satisfy itself Because it would be illegal for Some other substantial reason
that this was the reason the employee to do that work that is not whimsical, unworthy
Did the employer act reasonably in dismissing the employee?
Apply s.98(4) Apply Iceland Frozen Foods v Jones
Consider the size and resources of the Consider the range of reasonable responses
employer, equity, and the substantial and whether the response of the employer
merits of the case fell within that range
Was a fair procedure followed in dismissing the employee?
Capability Conduct
If sickness – Alternative work offered? Was ACAS Code of Practice followed? An
If incompetence – Training offered? investigation carried out? Warnings given?
Redundancy Illegality Some Other Substantial Reason
Was a fair and objective Was the offence of dishonesty? Were the commercial needs of
selection criteria applied? Is there risk of reputational the employer weighed against
(Polkey v A E Dayton) damaged? detriment to employees?
What are the potential remedies?
Reinstatement/Re-engagement Basic Award Compensatory Award
Where the employee gets their age factor x “just and equitable” (s.123(1))
job back, or a different job with 1 week gross pay x (max £538) to a maximum of £88,519 or 52
the same employer complete yrs’ service (max 20) weeks’ gross pay
