Unfair dismissal; some other substantial reason; reorganisation and refusal of new terms. A reorganisation of the business that the employer felt obliged to undertake, coupled with the employee's refusal to accept the new contract, can be a substantial reason of a kind such as to justify dismissal. Consultation is one of the circumstances relevant to whether the employer acted reasonably, not a requirement in itself; the tribunal had been entitled to find the dismissal fair without consultation, and its decision was restored and the EAT reversed.
Effective date of termination; construction of dismissal letter; notice not worked. A letter giving twelve weeks' notice of dismissal but stating the employee was not required to work it was construed as dismissal on notice: the employment continued until the notice expired, so the EDT was the expiry date and the claim was in time. The EAT urged employers to make clear whether a letter gives notice (employment continuing, with pay) or terminates immediately with a payment in lieu as compensation for dismissal.
Effective date of termination; construing a dismissal letter. Whether a letter dismisses with immediate effect and payment in lieu, or gives notice to terminate at a future date, depends on the construction of the letter. The construction should not be technical but should reflect what an ordinary, reasonable employee would understand by the words used, read in the light of the facts known to the employee when he received it. Where the words are truly ambiguous they are construed most strongly against the employer who uses them, who must show that the notice unambiguously has the meaning relied on. A letter giving ten weeks' notice ending on a stated date, but referring to a payment 'in lieu of notice', was read as notice expiring on that date.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Resignation; unambiguous words. Where an employee uses unambiguous words of resignation and the employer understands them in that sense, there is a resignation and not a dismissal: the natural meaning of the words is not overridden by appeals to what a reasonable employer might have assumed, and the speaker's undisclosed intention is not taken into account. Fox LJ noted that the position may be different for an immature employee, a decision taken in the heat of the moment, or an employee jostled into a decision by the employer, none of which applied to an experienced office manager. The employer's appeal was allowed: the employee had not been dismissed.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; reasonable responses; established the 'band of reasonable responses' test.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; third-party pressure; some other substantial reason. Pressure from a third party to remove an employee is capable of being some other substantial reason for dismissal, but in deciding whether the employer acted reasonably the tribunal must have regard to any injustice suffered by the employee. Where the EAT finds that the tribunal misdirected itself, it must remit the case unless satisfied that the decision was plainly and unarguably right notwithstanding the misdirection; here it should have remitted.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; compensation; if a dismissal is procedurally unfair but the employee would have been dismissed anyway, compensation is reduced. [Summary checked against a later judgment that cites it, not the judgment itself.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Resignation or dismissal; unambiguous words. Generally, where an employee uses unambiguous words of resignation to the employer, directly or through an intermediary, and the employer so understands them, the proper conclusion of fact is that the employee has resigned, and tribunals should not be astute to find otherwise. But something in the context of the exchange, or in the employee's own circumstances, may entitle the tribunal to conclude that despite appearances there was no real resignation. There was evidence on which the tribunal could find a dismissal rather than a resignation, and the Court of Appeal would not disturb that finding of fact.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; some other substantial reason; reorganisation; refusal of new terms. There is no principle of law that dismissal for refusing much less favourable new terms is unfair unless acceptance is vital to the survival of the business. The tribunal must examine the employer's motives and be satisfied that the changes are not imposed for arbitrary reasons, and then carry out a balancing exercise, considering the benefit to the employer of the changes as well as their disadvantage to the employees, and the fact that many employees accepted them. The appeal was allowed and the case remitted.
Unfair dismissal; some other substantial reason; reorganisation; refusal of new terms. There is no principle of law that dismissal for refusing much less favourable new terms is unfair unless acceptance is vital to the survival of the business. The tribunal must examine the employer's motives and be satisfied that the changes are not imposed for arbitrary reasons, and then carry out a balancing exercise, considering the benefit to the employer of the changes as well as their disadvantage to the employees, and the fact that many employees accepted them. The appeal was allowed and the case remitted.
Unfair dismissal; remedies; the compensatory award under s.123(1) ERA 1996 does not allow recovery of non-pecuniary loss such as injury to feelings. The House of Lords reversed the Court of Appeal and restored the EAT, reaffirming Norton Tool Co Ltd v Tewson, which had been generally assumed to state the law until Lord Hoffmann's observations in Johnson v Unisys.
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Unfair dismissal; conduct; the substitution error. In an unfair dismissal case the tribunal's role is to review objectively the fairness of the employer's decision, not to rehear the facts on which the employer formed its belief. Here the tribunal's own findings about the claimant's conduct, made for the purposes of contributory fault, had seeped into its reasoning on fairness, so that it substituted its own view for the grounds on which the employer had formed its belief. Mummery LJ suggested that tribunals keep their findings on the fairness of the dismissal separate from findings on disputed facts relevant only to other issues, such as contributory fault.
“It is all too easy, even for an experienced ET, to slip into the substitution mindset.”Mummery LJ, at [43]
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Unfair dismissal; some other substantial reason; dismissal for refusing a pay cut. The employer, in trading difficulty, asked its staff to vote on a five per cent pay reduction; 77 voted in favour and the claimant, one of two who ultimately refused, was dismissed. The tribunal found the dismissal unfair. The EAT (Langstaff J presiding) allowed the appeal and remitted. The tribunal had misread Catamaran Cruisers Ltd v Williams as requiring that the employer be in a situation so desperate that the cuts were the only way of saving the business, when that case had rejected the proposition [10]-[11]; and it had asked whether it was reasonable for the employee to refuse, when section 98(4) asks whether the employer acted reasonably in dismissing. The EAT added that 'equity' in section 98(4)(b) may require a tribunal to consider on whom the cuts fell, including whether management kept its own pay while cutting that of others [23].
Notice of dismissal; retraction. A notice of dismissal, once given, cannot be unilaterally retracted and may be withdrawn only by consent. The 'special circumstances' exception is not a true exception but merely allows the giver to show he never intended to give notice at all. Note the party order: CF Capital plc was the appellant.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; conduct; band of reasonable responses. A care home nurse was dismissed for gross misconduct for falsifying a patient record and failing to make observations of a resident who had fallen. The tribunal found the dismissal outside the band because it regarded falsification of records as less serious than other offences in the employer's handbook. The Court of Appeal held that the tribunal had substituted its own view of the seriousness of the charges: the accurate recording of care was obviously of the greatest importance, the panel was entitled to treat falsification as serious and capable of meriting dismissal, and it was entitled to find no genuine mitigation. The EAT had been right that the finding of unfair dismissal could not stand.
“It is obvious that the scrupulous maintenance of accurate and reliable records of such care is of the greatest importance.”Rimer LJ, at [60]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; conduct; gross misconduct and sanction. A finding of gross misconduct does not automatically mean that dismissal falls within the band of reasonable responses: the tribunal must still ask whether dismissal was reasonable in the particular circumstances, taking account of mitigation such as long service, a previously unblemished record and the consequences of dismissal for the employee. To move straight from gross misconduct to fairness of dismissal is an error of law.
Affirmed by Brito-Babapulle v Ealing Hospital NHS Trust [2014] EWCA Civ 1626 (2014-10-29)
Unfair dismissal; consistency; dismissing an employee for a safety breach while not disciplining the manager was unfair.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; conduct; vexatious grievances; gross misconduct. A senior policy adviser raised a series of grievances about his managers, would neither progress them to the formal stage nor withdraw them, and refused to attend a grievance meeting. He was dismissed for raising numerous frivolous grievances, failing to follow reasonable instructions about attending meetings, and a breakdown in the working relationship. The EAT upheld the finding that the dismissal was fair. Whether conduct amounts to gross misconduct in the contractual sense is not the question under s.98(4) ERA 1996: the contractual position is one of the circumstances relevant to whether the employer acted reasonably in treating its reason as sufficient for dismissal. The tribunal was entitled to find that treating repeated attempts to subvert the purpose of the grievance procedure as vexatious was within the range of reasonable responses.
Termination; resignation in the heat of the moment; retraction. Words of resignation (or dismissal) are judged objectively in all the circumstances known to the recipient: there is no special 'heat of the moment' exception, but words spoken in anger or distress may, objectively assessed, not have been 'seriously meant' or 'really intended' as a conscious, rational resignation, in which case they never took effect. Once notice is validly given it cannot be unilaterally retracted — withdrawal requires the employer's consent.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Construction of dismissal letters; EDT. A letter headed 'without prejudice', incorrectly asserting termination by mutual agreement and enclosing a draft settlement agreement, was nonetheless correctly construed as a letter of dismissal: it clearly communicated unilateral termination on an identified date, with a clear demarcation between the termination part and the settlement proposal, and did not come out of the blue. Applies the Chapman v Letheby non-technical, reasonable-employee approach to identifying whether and when an employer's document terminates the contract.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; conduct; band of reasonable responses; mitigation. The claimant posted a racist joke on the company intranet during an equality campaign, not realising it was racist. The tribunal held dismissal outside the band because of his state of mind, apology, long service and clean record. The EAT held that the tribunal had allowed its own view of the gravity of the conduct, in light of that mitigation, to influence its decision, and had not asked whether dismissal was reasonably open to the dismissing manager who had taken the same mitigation into account. What the employer concludes about the employee's state of mind will usually be highly relevant, but an employer may within the band dismiss for conduct that is not malicious yet is reasonably regarded as seriously thoughtless or lacking in insight, given its impact.
“But it may still be open to an employer within the band of reasonable responses to dismiss for conduct which, though it is not believed to be malicious, is still reasonably considered to be seriously thoughtless or lacking in insight, negligent or reckless, in view of what is considered to be its serious impact or implications.”Judge Auerbach, at [62]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.