Unfair Dismissal
Outcomes:
1. Analyse a potential unfair dismissal claim and identify fair and unfair aspects of a dismissal
situation, evaluate the significance of each and advise on the merits of the claim.
2. Advise a client on the remedies available following a finding of unfair dismissal and calculate
any compensation which may be payable to a successful claimant.
3. Identify the drafting skills required to complete s.8 of the ET1 form and plan the contents of
s.6 of the ET3 form.
Add in full compensatory calculations page 135
Draft the ET1/3
, UD: Exam structure
1. Within the time limit to 3 months less one day from the effective date of termination- s.111
present a claim
Þ Termination with notice= date notice expires
Þ Termination without notice- date of the dismissal
Þ Failure to renew fixed term contract- date the fixed term expired
Þ Constructive dismissal- date the employee leaves or where the
notice expires
Need to participate in ACAS early conciliation if they want to bring a claim,
then they present the certificate.
2. Eligibility Burden of proof on the employee to show they are eligible
o Employee- s.94, 135 ERA 1996- someone is an employee if they
work under a contract of employment under s.230(1). Therefore,
self-employed, workers and independent contractors are excluded
from bringing a UD claim.
o 2 years continuous employment? s.211(1)(a) ) continuous
employment begins from the day the employee starts work so
informal work carried out prior to the formal start date will not be
within the continuous period of employment (Koeing v Mind Gym)
and usually means working for the same employer without a break
and can be continuous in spite of short break s.212(3)(c)
o Not an excluded class: works for the crown, armed forces, police
3. Has there been a dismissal? Burden of proof on the employee
Expiry and non-renewal of fixed term contract- dismissal under
s.95(1)(b)
Actual dismissal-
terminated by the employer s.95(1)(a) and 136(1)(a), with notice, without
notice, Futty v Brekkas- the words of dismissal need to be unambiguous
and clear that there has been a dismissal.
Constructively dismissed- s.95(1)(c) and 136(1)(c)
repudiatory Breach of implied or actual contract from the employer causing
resignation. The resignation needs to be within a ‘reasonable time’.
o Last straw doctrine applies where there is cumulative effect (Abbey
National v Robinson)
Where an employee intends to rely on s.95(1)(c), he should consider using
the acas code of practice grievance procedure before resigning or
submitting an ET1
o Failure to comply with the acas code, gives the ET a
discretionary power to increase or decrease awards up to 25%
if they think failure to comply with the code was unreasonable
4. Potentially fair reason? Burden of proof on the employer 98(2)
S.98(2)
The employer will aim to show that the dismissal was for one of the 5
permitted reasons and therefore, is fair
See page 150 onwards
Outcomes:
1. Analyse a potential unfair dismissal claim and identify fair and unfair aspects of a dismissal
situation, evaluate the significance of each and advise on the merits of the claim.
2. Advise a client on the remedies available following a finding of unfair dismissal and calculate
any compensation which may be payable to a successful claimant.
3. Identify the drafting skills required to complete s.8 of the ET1 form and plan the contents of
s.6 of the ET3 form.
Add in full compensatory calculations page 135
Draft the ET1/3
, UD: Exam structure
1. Within the time limit to 3 months less one day from the effective date of termination- s.111
present a claim
Þ Termination with notice= date notice expires
Þ Termination without notice- date of the dismissal
Þ Failure to renew fixed term contract- date the fixed term expired
Þ Constructive dismissal- date the employee leaves or where the
notice expires
Need to participate in ACAS early conciliation if they want to bring a claim,
then they present the certificate.
2. Eligibility Burden of proof on the employee to show they are eligible
o Employee- s.94, 135 ERA 1996- someone is an employee if they
work under a contract of employment under s.230(1). Therefore,
self-employed, workers and independent contractors are excluded
from bringing a UD claim.
o 2 years continuous employment? s.211(1)(a) ) continuous
employment begins from the day the employee starts work so
informal work carried out prior to the formal start date will not be
within the continuous period of employment (Koeing v Mind Gym)
and usually means working for the same employer without a break
and can be continuous in spite of short break s.212(3)(c)
o Not an excluded class: works for the crown, armed forces, police
3. Has there been a dismissal? Burden of proof on the employee
Expiry and non-renewal of fixed term contract- dismissal under
s.95(1)(b)
Actual dismissal-
terminated by the employer s.95(1)(a) and 136(1)(a), with notice, without
notice, Futty v Brekkas- the words of dismissal need to be unambiguous
and clear that there has been a dismissal.
Constructively dismissed- s.95(1)(c) and 136(1)(c)
repudiatory Breach of implied or actual contract from the employer causing
resignation. The resignation needs to be within a ‘reasonable time’.
o Last straw doctrine applies where there is cumulative effect (Abbey
National v Robinson)
Where an employee intends to rely on s.95(1)(c), he should consider using
the acas code of practice grievance procedure before resigning or
submitting an ET1
o Failure to comply with the acas code, gives the ET a
discretionary power to increase or decrease awards up to 25%
if they think failure to comply with the code was unreasonable
4. Potentially fair reason? Burden of proof on the employer 98(2)
S.98(2)
The employer will aim to show that the dismissal was for one of the 5
permitted reasons and therefore, is fair
See page 150 onwards
