Claims
Claims Wrongful dismissal Contractual claim for breach of contract = damages REMEMBER - for ET Claims:
Must arise/be outstanding on the termination. (Capek v Lincolnshire County Council) the COA held tribunals have no jurisdiction to hear claims for breach of contract lodged prior to dismissal No damages over £25,000 No claims for breach of confidentiality/restrictive covenants Employer can counterclaim Must be within 3 months of termination
Time limit ET = 3 months of dismissal (Civil = 6yrs of dismissal) 1. Has there been a dismissal? Actual = sacked Constructive = Employer commits a repudiatory breach of express/implied term and employee entitled to resign in response (with/without notice) and treat the contract as discharged (must be within reasonable time of breach) 2. Is the dismissal wrongful? Actual - No notice/insufficient notice (unless employee conduct caused dismissal) - stat min notice = 1 week per year of employment up to 12wks Is there a PILON clause? Yes = no claim No but money accepted = no breach No but money received but not accepted as waiving breach = technically still wrongful dismissal but not financially worth pursuing Boston Deep Sea Fishing v Ansell - pre-dismissal misconduct discovered after dismissal may justify dismissal without notice Fixed term contracts: pre-expiry is wrongful unless (1) in accordance with terms of a break clause (2) justified by the employee’s gross misconduct Constructive dismissal - Employer’s repudiatory breach itself renders the dismissal wrongful e.g. breach of implied term of trust and confidence 3. Compensation Damages for breach of contract - for proper notice period or until end of fixed term (unless break clause) must not be too remote must either arise naturally from the breach or be such as may reasonably be supposed to have been in the contemplation of both parties at the time of contract, as the probable result of the breach (Hadley v Baxendale) Purpose is to put C in position had they not have been wrongfully dismissed
PLUS additional contractual losses (e.g. commission, health insurance, car, bonuses that were contractual)
Pension - 2 types: loss of the pension position earned to the date of dismissal, and loss of future pension opportunity. Holiday pay – Payment in lieu of any holiday entitled to but had not yet taken max 2yrs back pay
Reducing factors o Payments made (e.g. Payment in lieu - deducted from damages) o Certain benefits (e.g. jobseekers/income support) o Duty to mitigate (must look for another job and not unreasonably reject for notice period) o Accelerated receipt (any payment made before it was due i.e. for long term fixed terms where payment of damages paid before the salary would have - used to minimise benefits from early payment such as interest accrued)
Employment tribunal – maximum award £25,000 Civil court – no maximum PLUS ACAS - increase/decrease by 25% for unreasonable compliance with ACAS code
Unfair dismissal 1. Eligibility (burden of proof on employee) -
Time limits - 3 months (less 1 day) from EDT Effective date of termination = date the notice expires, or the date termination takes effect (s97/145 ERA 1998) Employee - not worker/self-employed 2 years’ service (for employees employed by current employer on or after 6 April 2012; 1 year for all others) Not be part of an excluded class
2. Dismissal (burden of proof on employee) - Expiry/non-renewal of fixed term contract - Actual – sacking with or without notice - Constructive dismissal – employee resigns as result of employer’s repudiatory breach of contract and treats contract as discharged (Western Excavating v Sharp) 3. Reason for dismissal (ERA 1996, s 98(2)) (burden of proof on employer) - What is the main reason for the dismissal? - will be potentially fair if one of the 5 reasons. If not = unfair - Does that reason fall within one of the five potentially fair reasons? Redundancy – will be unfair if redundancy is not dealt with fairly however NB If reason is redundancy, consider claim for both unfair dismissal and a redundancy payment
Conduct – any misconduct, usually in the course of employment but may also be outside of employment if it has an effect on the employment relationship
Capability/qualifications – incompetence or inability due to skill aptitude, health or other physical/mental quality to do the work for which they were employed
Illegality – where it has become illegal either under statute for the employee to work or for the employer to employ 1
Some Other Substantial Reason – covers anything outside the above 4 but onus on the employer to show dismissal for SOSR is fair (e.g. readjustment of hours, replacement by better qualified person, clash of staff personalities, risk of damage to reputation)
4. Consider fairness of dismissal (ERA 1996, s 98(4)) Question of fact for tribunal S98(4) – should consider first – fairness depends on size and administrative resources of employer (smaller firms may have more reason to dismiss and replace for example), equity (long service = more consideration), sufficiency of the reason given by the employer (Range of Reasonable Responses), substantial merits (fair, consistent, main cause of dismissal) Test – Range of reasonable responses (Iceland Frozen Foods) – will be reasonable if the reasonable employer, in the circumstances would consider the dismissal a reasonable response (sufficient to know that a reasonable employer would – doesn’t need to be all employers) Should be based on information available to the employer at the time of dismissal. Procedural fairness (depends on reason) – dismissal may still be unfair for a fair reason if fair procedure isn’t followed ACAS Code – not legally binding, but persuasive should be applied for conduct/capability dismissals doesn’t apply to redundancy or end of fixed-term doesn’t make automatically unfair just discretion for a 25% adjustment doesn’t require grievance to be raised first, but failure to do so reasonably will likely result in deduction of up to 25%
Procedure for disciplinary matters: Establish facts Inform employee of problem Hold a meeting with employee Allow employee to be accompanied Decide on appropriate action Provide an opportunity for appeal
Capability/Qualification – ACAS distinguishes between incompetence (factors: can employee be moved to job within capability) and sickness (factors: nature, duration, length of service, need of employer) Conduct – should follow ACAS procedure (above) – careful to determine misconduct and gross misconduct (GM allows for automatic dismissal without notice, misconduct does not), warnings should be given (should be advised when dismissal is likely), suspension, investigation – should follow internal procedures is key
BHS v Burchell – can be fair if: (1) genuine belief in guilt (2) reasonable grounds for belief and (3) carried out reasonable investigation
Redundancy – Polkey v Dayton – fair dismissal for redundancy is (1) warning / consultation (2) fair selection (i.e. pool of selection) (3) alternative employment
Illegality – employer should take steps to redeploy employee where possible 2
Must arise/be outstanding on the termination. (Capek v Lincolnshire County Council) the COA held tribunals have no jurisdiction to hear claims for breach of contract lodged prior to dismissal No damages over £25,000 No claims for breach of confidentiality/restrictive covenants Employer can counterclaim Must be within 3 months of termination
Time limit ET = 3 months of dismissal (Civil = 6yrs of dismissal) 1. Has there been a dismissal? Actual = sacked Constructive = Employer commits a repudiatory breach of express/implied term and employee entitled to resign in response (with/without notice) and treat the contract as discharged (must be within reasonable time of breach) 2. Is the dismissal wrongful? Actual - No notice/insufficient notice (unless employee conduct caused dismissal) - stat min notice = 1 week per year of employment up to 12wks Is there a PILON clause? Yes = no claim No but money accepted = no breach No but money received but not accepted as waiving breach = technically still wrongful dismissal but not financially worth pursuing Boston Deep Sea Fishing v Ansell - pre-dismissal misconduct discovered after dismissal may justify dismissal without notice Fixed term contracts: pre-expiry is wrongful unless (1) in accordance with terms of a break clause (2) justified by the employee’s gross misconduct Constructive dismissal - Employer’s repudiatory breach itself renders the dismissal wrongful e.g. breach of implied term of trust and confidence 3. Compensation Damages for breach of contract - for proper notice period or until end of fixed term (unless break clause) must not be too remote must either arise naturally from the breach or be such as may reasonably be supposed to have been in the contemplation of both parties at the time of contract, as the probable result of the breach (Hadley v Baxendale) Purpose is to put C in position had they not have been wrongfully dismissed
PLUS additional contractual losses (e.g. commission, health insurance, car, bonuses that were contractual)
Pension - 2 types: loss of the pension position earned to the date of dismissal, and loss of future pension opportunity. Holiday pay – Payment in lieu of any holiday entitled to but had not yet taken max 2yrs back pay
Reducing factors o Payments made (e.g. Payment in lieu - deducted from damages) o Certain benefits (e.g. jobseekers/income support) o Duty to mitigate (must look for another job and not unreasonably reject for notice period) o Accelerated receipt (any payment made before it was due i.e. for long term fixed terms where payment of damages paid before the salary would have - used to minimise benefits from early payment such as interest accrued)
Employment tribunal – maximum award £25,000 Civil court – no maximum PLUS ACAS - increase/decrease by 25% for unreasonable compliance with ACAS code
Unfair dismissal 1. Eligibility (burden of proof on employee) -
Time limits - 3 months (less 1 day) from EDT Effective date of termination = date the notice expires, or the date termination takes effect (s97/145 ERA 1998) Employee - not worker/self-employed 2 years’ service (for employees employed by current employer on or after 6 April 2012; 1 year for all others) Not be part of an excluded class
2. Dismissal (burden of proof on employee) - Expiry/non-renewal of fixed term contract - Actual – sacking with or without notice - Constructive dismissal – employee resigns as result of employer’s repudiatory breach of contract and treats contract as discharged (Western Excavating v Sharp) 3. Reason for dismissal (ERA 1996, s 98(2)) (burden of proof on employer) - What is the main reason for the dismissal? - will be potentially fair if one of the 5 reasons. If not = unfair - Does that reason fall within one of the five potentially fair reasons? Redundancy – will be unfair if redundancy is not dealt with fairly however NB If reason is redundancy, consider claim for both unfair dismissal and a redundancy payment
Conduct – any misconduct, usually in the course of employment but may also be outside of employment if it has an effect on the employment relationship
Capability/qualifications – incompetence or inability due to skill aptitude, health or other physical/mental quality to do the work for which they were employed
Illegality – where it has become illegal either under statute for the employee to work or for the employer to employ 1
Some Other Substantial Reason – covers anything outside the above 4 but onus on the employer to show dismissal for SOSR is fair (e.g. readjustment of hours, replacement by better qualified person, clash of staff personalities, risk of damage to reputation)
4. Consider fairness of dismissal (ERA 1996, s 98(4)) Question of fact for tribunal S98(4) – should consider first – fairness depends on size and administrative resources of employer (smaller firms may have more reason to dismiss and replace for example), equity (long service = more consideration), sufficiency of the reason given by the employer (Range of Reasonable Responses), substantial merits (fair, consistent, main cause of dismissal) Test – Range of reasonable responses (Iceland Frozen Foods) – will be reasonable if the reasonable employer, in the circumstances would consider the dismissal a reasonable response (sufficient to know that a reasonable employer would – doesn’t need to be all employers) Should be based on information available to the employer at the time of dismissal. Procedural fairness (depends on reason) – dismissal may still be unfair for a fair reason if fair procedure isn’t followed ACAS Code – not legally binding, but persuasive should be applied for conduct/capability dismissals doesn’t apply to redundancy or end of fixed-term doesn’t make automatically unfair just discretion for a 25% adjustment doesn’t require grievance to be raised first, but failure to do so reasonably will likely result in deduction of up to 25%
Procedure for disciplinary matters: Establish facts Inform employee of problem Hold a meeting with employee Allow employee to be accompanied Decide on appropriate action Provide an opportunity for appeal
Capability/Qualification – ACAS distinguishes between incompetence (factors: can employee be moved to job within capability) and sickness (factors: nature, duration, length of service, need of employer) Conduct – should follow ACAS procedure (above) – careful to determine misconduct and gross misconduct (GM allows for automatic dismissal without notice, misconduct does not), warnings should be given (should be advised when dismissal is likely), suspension, investigation – should follow internal procedures is key
BHS v Burchell – can be fair if: (1) genuine belief in guilt (2) reasonable grounds for belief and (3) carried out reasonable investigation
Redundancy – Polkey v Dayton – fair dismissal for redundancy is (1) warning / consultation (2) fair selection (i.e. pool of selection) (3) alternative employment
Illegality – employer should take steps to redeploy employee where possible 2
