UNFAIR DISMISSAL
The main piece of legislation is the Employment Rights Act 1996 hereinafter “ERA 1996”.
For problem questions you need to follow this structure:
1. An employee has the statutory right not to be dismissed under s 94(1); has the employee
been dismissed by his or her employer?
2. Does the employee possess ‘a contract of employment’ under s 230(1) & (2)?
3. Was the employee dismissed, under s 95:
a. By the EMPLOYER, with or without notice (s 95(1)(a)),
b. Contract comes to an end – fixed term contract expiry (s 95(1)(b)),
c. By the EMPLOYEE, with or without notice – constructive dismissal (s 95(1)(c)).
4. Has the employee accumulated ‘two years of continuous service’ under s 108?
5. FAIRNESS:
a. REASON: Did the employer have a fair reason for dismissal under s 98(1) & (2)?
b. PROCEDURE: Did the employer act reasonably under s 98(4)(a) & (b)?
6. What remedies are available to the employee upon a successful unfair dismissal claim?
a. Compensation:
i. STARTING POINT: Basic award pay under ss 119-122 & 126
ii. THEN CONSIDER: Compensatory award under ss 123, 124, 124A & 125
iii. ADDITIONAL AWARD: Provision under s 117.
b. Reinstatement or Re-engagement under ss 112 to 116.
, 1. The Statutory right.
Under s 94(1) of the ERA 1996, ‘an employee has the right not to be unfairly dismissed by
his employer’.
The case, Kuzel v Roche Products Ltd (2008), clarified the position on who bears the burden
of proof in unfair dismissal claims (two important points):
o The ERA 1996 ‘is completely silent on the burden of proof’ for some issues, and when
this occurs, ‘the general rules apply … a person bringing a claim must prove it and a
person asserting a fact must produce some evidence for it’ (at [49] per Mummery LJ)
o (1) DISMISSAL IS ON THE EMPLOYEEE ‘The claimant employee must
prove that he was dismissed’ [50]. They must ‘produce evidence to show that he
was an employee … [such as] a written contract, written particulars or some
other document relating to pay arrangements’ [51].
o (2) REASON FOR DISMISSAL IS ON EMPLOYER (SEE LATER) ‘An
employer who dismisses an employee has a reason for doing so. He knows what it
is. He must prove what it was.’ [61]
2. Individual must be an employee.
Only employees, and thus not workers, can bring a claim for unfair dismissal.
Employee means an individual who has entered into or works under … a contract of
employment s 230(1).
Due to the vagueness in the Statutory definition, consider the common law tests:
CONTROL TEST:
o Does the employer control, or have the right to control, not only what the
employee does but how he does the job? – Yewens v Noakes (1880).
o A contract of service exists according to the authority in Ready Mixed Concrete
(South East) Ltd v Minister of Pensions and National Insurance (1968) if: (a) In
consideration of a wage, employees agrees to provide work, skill and performance
(b) he agrees he will be subject to the employer’s control in a sufficient degree and
(c) other provisions of the contract are consistent with a contract of service.
INTEGRATION TEST:
o How ‘integrated’ is an employee to the business? – Stevenson Jordan & Harrison v
MacDonald and Evans (1952).
The main piece of legislation is the Employment Rights Act 1996 hereinafter “ERA 1996”.
For problem questions you need to follow this structure:
1. An employee has the statutory right not to be dismissed under s 94(1); has the employee
been dismissed by his or her employer?
2. Does the employee possess ‘a contract of employment’ under s 230(1) & (2)?
3. Was the employee dismissed, under s 95:
a. By the EMPLOYER, with or without notice (s 95(1)(a)),
b. Contract comes to an end – fixed term contract expiry (s 95(1)(b)),
c. By the EMPLOYEE, with or without notice – constructive dismissal (s 95(1)(c)).
4. Has the employee accumulated ‘two years of continuous service’ under s 108?
5. FAIRNESS:
a. REASON: Did the employer have a fair reason for dismissal under s 98(1) & (2)?
b. PROCEDURE: Did the employer act reasonably under s 98(4)(a) & (b)?
6. What remedies are available to the employee upon a successful unfair dismissal claim?
a. Compensation:
i. STARTING POINT: Basic award pay under ss 119-122 & 126
ii. THEN CONSIDER: Compensatory award under ss 123, 124, 124A & 125
iii. ADDITIONAL AWARD: Provision under s 117.
b. Reinstatement or Re-engagement under ss 112 to 116.
, 1. The Statutory right.
Under s 94(1) of the ERA 1996, ‘an employee has the right not to be unfairly dismissed by
his employer’.
The case, Kuzel v Roche Products Ltd (2008), clarified the position on who bears the burden
of proof in unfair dismissal claims (two important points):
o The ERA 1996 ‘is completely silent on the burden of proof’ for some issues, and when
this occurs, ‘the general rules apply … a person bringing a claim must prove it and a
person asserting a fact must produce some evidence for it’ (at [49] per Mummery LJ)
o (1) DISMISSAL IS ON THE EMPLOYEEE ‘The claimant employee must
prove that he was dismissed’ [50]. They must ‘produce evidence to show that he
was an employee … [such as] a written contract, written particulars or some
other document relating to pay arrangements’ [51].
o (2) REASON FOR DISMISSAL IS ON EMPLOYER (SEE LATER) ‘An
employer who dismisses an employee has a reason for doing so. He knows what it
is. He must prove what it was.’ [61]
2. Individual must be an employee.
Only employees, and thus not workers, can bring a claim for unfair dismissal.
Employee means an individual who has entered into or works under … a contract of
employment s 230(1).
Due to the vagueness in the Statutory definition, consider the common law tests:
CONTROL TEST:
o Does the employer control, or have the right to control, not only what the
employee does but how he does the job? – Yewens v Noakes (1880).
o A contract of service exists according to the authority in Ready Mixed Concrete
(South East) Ltd v Minister of Pensions and National Insurance (1968) if: (a) In
consideration of a wage, employees agrees to provide work, skill and performance
(b) he agrees he will be subject to the employer’s control in a sufficient degree and
(c) other provisions of the contract are consistent with a contract of service.
INTEGRATION TEST:
o How ‘integrated’ is an employee to the business? – Stevenson Jordan & Harrison v
MacDonald and Evans (1952).
