1 WLR 51 - Unfair dismissal; procedure; an employee must be given an opportunity to explain before dismissal.
Unfair dismissal; conduct; searching for another job is not a breach of fidelity warranting dismissal.
Unfair dismissal; knowledge; post-dismissal knowledge of misconduct goes to remedy, not liability.
Unfair dismissal; conduct; failure to follow a fair procedure usually makes dismissal unfair.
Unfair dismissal; reasonable responses; the tribunal must not ask what *it* would have done.
Unfair dismissal; conduct; two warnings were sufficient.
Unfair dismissal; fairness; fairness is judged not by the tribunal's own hunch but by the objective standard of the reasonable employer in that line of business (redundancy selection of a long-serving electrician over a one-week recruit was unfair).
Unfair dismissal; conduct; in a small organization, a less formal procedure may be acceptable.
Unfair dismissal; procedure; failure to allow an appeal is a serious procedural defect.
Constructive dismissal; causation; resignation for another reason. An employee accepts the employer's repudiation only if the resignation is caused by the breach relied on. The claimant, subjected to a number of slights, resigned and, asked why, said he had a better job and would have no part in what the employer was doing, though it was right for the company. The EAT held that this showed only that he had a better job to go to and disliked the management style: there was no indication that he left because of any breach of contract, so there was no constructive dismissal [IDS 1.48]. An employee who would have left anyway, irrespective of the employer's conduct, has not been dismissed.
Unfair dismissal; procedure; the 'no difference' rule (overturned by Polkey) previously allowed unfair procedures if the result would be the same.
Unfair Dismissal; the classic 'Burchell' test: Did the employer have a genuine belief, on reasonable grounds, after a reasonable investigation?
Unfair dismissal; procedure; failure to tell the employee of the right to appeal made dismissal unfair.
Unfair dismissal; conduct; the employer need not prove guilt, only reasonable belief.
Unfair dismissal; conduct; where the employer reasonably suspects a group of theft but cannot identify the culprit, dismissing the group may be fair.
Unfair dismissal; capability; lack of warnings usually makes a capability dismissal unfair.
Unfair dismissal; procedure; lack of procedure usually makes dismissal unfair.
Unfair dismissal; reasonable responses; the tribunal must ask if the dismissal fell within the range of reasonable responses.
Unfair dismissal; conduct; dismissal for driving a company car without a licence was fair.
Unfair dismissal; procedure; deception in the application process is a fair reason for dismissal.
Unfair dismissal; reason for dismissal; burden of proof. The Court of Appeal held that where an employee raises a positive case that the real reason for dismissal differs from that put forward by the employer (e.g. alleging a hidden or ulterior motive), the burden shifts onto the employer to prove the reason it advances. The employer cannot simply assert a reason and rest; it must discharge the burden on the balance of probabilities. Griffiths LJ: if the employer's evidence as to the reason for dismissal is challenged, the tribunal must decide which reason it accepts on evidence. The case remains important for whistleblowing and automatically unfair dismissal claims where the reason is disputed.
Unfair dismissal; conduct; extensive delay in bringing disciplinary charges made the dismissal unfair.
Unfair dismissal; compensation; if a dismissal is procedurally unfair but the employee would have been dismissed anyway, compensation is reduced.
Unfair dismissal; failure to hear a grievance before dismissal does not automatically make the dismissal unfair.
Unfair dismissal; reason for dismissal; principal reason; multiple charges. The committee's letter set out four reasons for dismissal, all going to conduct or capability. The tribunal found one serious charge neither established in fact nor believed on reasonable grounds, yet held the dismissal fair. The House of Lords, upholding the Court of Session, held that the Council had failed to show what the principal reason was, and had not shown that the charge which failed was neither the principal reason nor part of it. Since at least an important part of the reason was not made out, the employer had failed to show a reason under s.98(1) and the dismissal was unfair [IDS 3.23]. Where several complaints together form the reason, the tribunal must examine all of them and assess fairness on that composite reason, as in Robinson v Combat Stress [IDS 3.24].
Unfair dismissal; conduct; belief in guilt must be genuine and reasonable.
Unfair dismissal; appeal; a defect in the disciplinary hearing can be rectified by a comprehensive appeal.
Unfair dismissal; investigation; the investigation must be sufficient to establish the facts.
Unfair dismissal; appeal; a fair appeal can cure an unfair initial hearing.
Unfair dismissal; a disciplinary appeal is a rehearing, not just a review of the initial decision.
Unfair dismissal; appeal; a fair appeal can cure an unfair disciplinary hearing.
Unfair dismissal; disciplinary procedure; the appeal panel can cure defects in the initial hearing.
Unfair dismissal; reasonable responses; the tribunal was wrong to substitute its view (overruled by Foley).
Unfair dismissal; conduct; the employer must have a genuine belief in guilt.
Unfair dismissal; sexual misconduct; the employer must investigate fully even if the police are involved.
Unfair dismissal; reasonable responses; the band of reasonable responses applies to the *process* as well.
Gross misconduct; repudiatory breach; summary dismissal; objective test. The Court of Appeal approved the test in Neary v Dean of Westminster: conduct justifies summary dismissal where it so undermines the trust and confidence inherent in the particular contract of employment that the employer should no longer be required to retain the employee. The employee's conduct is judged objectively, so an employee can repudiate the contract without intending to; the suggestion in Laws v London Chronicle that repudiation requires a deliberate intention to disregard the essential requirements of the contract is not the test. The Neary formulation was later approved by the Privy Council in Jervis v Skinner.
Unfair dismissal; investigation; the 'range of reasonable responses' test applies to the investigation process as well as the decision.
Investigations into serious allegations (e.g. criminal conduct) require a particularly rigorous standard of inquiry by the employer.
Unfair dismissal; procedure; reliance on a witness statement without the witness attending was not unfair.
Unfair dismissal; fairness; a tribunal must look at the substance of the dismissal process, not just technicalities.
Leading EAT authority on the low threshold for establishing a written grievance under the (former) statutory grievance procedures. No formal labels or 'magic words' are required: provided the substance of the grievance and the substance of the tribunal claim are the same, the claim is admissible. A letter of resignation can itself amount to a grievance. Frequently cited as authority for the proposition that the bar for what constitutes a written grievance for ACAS Code purposes is very low.
Unfair dismissal; expired warnings; reasonableness. The Inner House held that an employee was entitled to assume that a warning stated to lapse after twelve months meant what it said. The employer acted unreasonably in taking the expired warning into account when deciding to dismiss for misconduct, and a dismissal that would not have occurred had the warning not been on file was unfair [IDS 7.77]. Airbus UK Ltd v Webb [2008] ICR 561 distinguished it: Diosynth is not authority that an expired warning must be ignored for all purposes. Once expired it cannot be relied on as the reason for dismissal, but the earlier misconduct may still bear on the reasonableness of dismissing for similar misconduct under s.98(4), and in Airbus the employer was entitled to take it into account [IDS 7.78].
Unfair dismissal; procedure; 'cure' of procedural defects on appeal. The Court of Appeal held that an employment tribunal should consider the overall fairness of the whole disciplinary process, not merely the fairness of the initial hearing. Where procedural defects at the disciplinary stage are cured by a fair internal appeal, the dismissal may still be held fair. The appellate tribunal must consider whether the totality of the process, original hearing plus appeal, was reasonable in all the circumstances. This requires consideration of s.98(4) factors at the level of the overall process, not only at the point of the first decision. A full re-hearing on appeal can remedy defects such as bias or insufficient investigation at the primary stage.
Unfair dismissal; investigation; where the evidence is a 'he said/she said' conflict, the employer must investigate with particular care.
TUPE; relevant transfer; temporary cessation of operations. The claimant was the bar steward of a social club whose premises licence was withdrawn on 6 June 2008; he was dismissed on 12 August; the parish council, freehold owner of the premises, applied for a new licence on 30 September and reopened the bar on 6 October without a full-time steward. The EAT held that an economic entity can survive a temporary suspension, so a temporary cessation of operations is no bar to a relevant transfer under reg 3(1)(a). Applied in Northern Ireland to a 16-day closure between transfer agreement and incorporation of the new owner (Miller v Glendinning) and a hotel closed for over three weeks before reopening (Grainger v Lough Erne Hotel).
Unfair dismissal; range of reasonable responses; appellate restraint. The Court of Appeal allowed the employee's appeal and restored the tribunal's finding of unfair dismissal, which the EAT had set aside on the ground that the tribunal had substituted its own view for the employer's. Mummery LJ: the reading of an ET decision must not be so fussy that it produces pernickety critiques; over-analysis of the reasoning process, hypercriticism of the way the decision is written and focusing on particular turns of phrase to the neglect of the decision read in the round are appellate weaknesses to avoid [30]. Read in the round, the tribunal had applied the objective band of reasonable responses test [37]-[38]. Even had it applied the wrong test, the EAT should have remitted rather than dismissed the claim, the decision not being perverse [39]. Moore-Bick LJ agreed the appeal should be allowed but would have remitted: the tribunal asked the right question and answered it by reference to the wrong facts, substituting its own findings about the earlier warning for the disciplinary panel's understanding of them [55]-[59].
Procedure; right to accompany; the employee has an absolute right to choose their companion (if eligible).
Unfair dismissal; procedural fairness; failure to investigate exculpatory evidence renders dismissal unfair.
Discrimination arising from disability; s.15 EqA; justification. Dismissal of a teacher on long-term sickness absence was disproportionate where the employer could have waited a little longer for the medical position to clarify; proportionality requires considering whether a less severe measure would have achieved the aim. A dismissal that is disproportionate under s.15 will generally also be unreasonable under s.98(4) ERA 1996, though the band of reasonable responses remains the unfair dismissal standard. The employer's failure at the internal appeal to engage with the new medical evidence that the claimant was fit to return was central to the finding of disproportion.
ACAS Code of Practice; scope; uplift; sham redundancy. An employer cannot sidestep the application of the ACAS Code by dressing up a dismissal that results from concerns that an employee is guilty of misconduct or is rendering poor performance by pretending that it is for some other reason such as redundancy [30]. A sham grievance process in a redundancy context engages the Code in its own right and justified a 25% uplift [53]. The principal answer to the Code's express carve-out of redundancy dismissals.
UKEAT/0095/12 - Unfair dismissal; procedure; failure to allow an employee to be accompanied makes dismissal unfair.
EAT/663/94 - Unfair dismissal; procedure; failure to investigate.
Indirect sex discrimination; pool for comparison; job-share on return from maternity leave. The employer refused a personnel officer's request to return from maternity leave on a job-share basis. The tribunal took as the pool all persons likely to apply for the post of personnel officer. The EAT (Lord Johnston) rejected the employer's argument that the pool should have been confined to personnel officers already within the company: it was proper for the pool to include all those who would be eligible for the job if the requirement to work full time were not applied, since insisting on full-time working discriminates against any woman with child-caring responsibilities who applies. Contrast Fulton v Strathclyde Regional Council, where an internally advertised vacancy confined the pool to existing employees; tribunals have generally preferred the Fulton approach.
ACAS Code of Practice; scope. Treats dismissal by reason of redundancy and the non-renewal of a fixed-term contract on its expiry as the two express carve-outs from the Code [12], so that a s.207A TULRCA 1992 uplift is not available in respect of a genuine redundancy dismissal.