Contract; gross misconduct; there is no fixed rule of law defining gross misconduct; it depends on the facts.
Ch 305 - Injunction; wrongful dismissal; court ordered an injunction to stop dismissal where damages were inadequate (rare).
Unfair dismissal; knowledge; post-dismissal knowledge of misconduct goes to remedy, not liability.
Unfair dismissal; conduct; mass dismissal of staff for suspected theft (where the culprit is unknown) can be fair.
Dismissal; words of dismissal; heat of the moment. Whether words spoken in anger ('you're finished with me') amount to a dismissal depends on how a reasonable listener would have understood them in all the circumstances: the tribunal was entitled to find the employer, on discovering the employee using the company van against instructions, had merely spoken in annoyance and had not dismissed him. Foundation authority for the principle that words of dismissal or resignation uttered in the heat of the moment are not conclusive and may be retracted within a reasonable time (applied in Kwik-Fit v Lineham; cf. Omar v Epping Forest CAB).
Unfair dismissal; SOSR; a sound business reason can justify dismissal for refusing new terms.
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.
Unfair dismissal; the 'band of reasonable responses' test; a dismissal is fair if a reasonable employer *could* have dismissed.
Unfair dismissal; consistency; inconsistency in punishment only makes dismissal unfair if the cases are truly parallel.
Construction of dismissal communications. Where an employee receives an ambiguous dismissal letter, the interpretation should not be a technical one but should reflect what an ordinary, reasonable employee would understand by the words used, construed in the light of the facts known to the employee at the date of receipt. The foundation of the objective, employee-perspective approach to identifying what an employer's communication actually did — applied in Meaker v Cyxtera Technology UK Ltd. Ambiguity in words of dismissal is construed against the party relying on them (Graham Group plc v Garratt, EAT 161/97).
Resignation; unambiguous words. Unambiguous words of resignation are given their plain meaning and may be accepted without there being a dismissal — save where spoken in the heat of the moment or by an employee under some incapacity, when the employer must check the true intention.
Unfair dismissal; reasonable responses; established the 'band of reasonable responses' test.
Unfair dismissal; SOSR; reorganization; refusal to accept a change in shifts can be SOSR dismissal.
Dismissal; heat of the moment. Words of dismissal spoken in the heat of the moment and retracted within minutes, once the heat had died down, were ineffective and there was no dismissal. The principle is confined to swift retraction of heat-of-the-moment words.
Unfair dismissal; third-party pressure; SOSR. Customer pressure to remove an employee is capable of being some other substantial reason, but in deciding reasonableness the tribunal must have regard to any injustice to the employee (length of service, work record, availability of alternatives); and an appellate tribunal that finds a misdirection need not remit if the decision below is plainly and unarguably right. Panel: Sir John Donaldson MR, Slade LJ, Parker LJ.
Unfair dismissal; appeals; the House of Lords held that the appeal is an integral part of the dismissal process and that the fairness of the dismissal must be assessed having regard to the appeal outcome. A properly conducted appeal can remedy procedural deficiencies in the original decision. Refusal to hear an appeal, particularly where dismissal turns on disputed facts, compounds procedural unfairness.
Unfair dismissal; compensation; if a dismissal is procedurally unfair but the employee would have been dismissed anyway, compensation is reduced.
SOSR; the dismissal of a temporary employee at the end of a contract can be for 'Some Other Substantial Reason'.
SOSR; business reorganization; dismissal for refusing new terms is fair if the business reasons are sound and procedure fair.
Unfair dismissal; illegality; an employee paid cash-in-hand to avoid tax cannot claim unfair dismissal.
Unfair dismissal; consistency; an employer may take into account not only the nature of the misconduct and surrounding facts but also personal circumstances affecting the individual employee; inconsistency of treatment only makes a dismissal unfair where the cases are truly comparable; the Court of Appeal endorsed the Hadjioannou approach requiring truly similar circumstances before disparity can found unfairness.
Unfair dismissal; reasonable responses; reaffirmed that the tribunal must not substitute its own view for the employer's.
Unfair dismissal; investigation; the 'range of reasonable responses' test applies to the investigation, not just the sanction.
EWCA Civ 2056 - Unfair dismissal; consistency; inconsistent treatment arguments must be based on truly similar cases.
Unfair dismissal; fixed-term contracts; non-renewal of a fixed-term contract is a dismissal.
Unfair dismissal; investigation; the 'range of reasonable responses' test applies to the investigation process as well as the decision.
Unfair dismissal; remedies; the compensatory award under s.123(1) ERA 1996 is confined to financial loss, non-pecuniary loss (injury to feelings, manner of dismissal) is not recoverable. The House of Lords unanimously confirmed the orthodox position that had prevailed in all tribunals prior to the Court of Appeal's contrary decision.
Unfair dismissal; police; police disciplinary regulations do not exclude the right to claim unfair dismissal.
Unfair dismissal; conduct; proceedings against a police officer.
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.
EWCA Civ 1304 - Unfair dismissal; resignation; an employee who resigns in heat of the moment should be given a cooling-off period.
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.
Unfair dismissal; consistency; dismissing an employee for a safety breach while not disciplining the manager was unfair.
TUPE; cross-border; dismissal for refusing to transfer abroad can be an ETO reason.
Refusal to postpone disciplinary hearing to allow trade union representative to attend rendered dismissal unfair under s.98(4) ERA 1996, even though no breach of the statutory right to be accompanied under s.10 Employment Relations Act 1999. The provisions of s.10 do not fetter the tribunal's discretion or circumscribe s.98(4).
Unfair Dismissal; redundancy; lack of an appeal process does not automatically render a redundancy dismissal unfair, though it is a strong factor.
Unfair Dismissal; conduct; dismissal for raising numerous frivolous grievances (vexatious litigant behavior) can be fair.
Redundancy; consultation; fair consultation must occur at a 'formative stage' (workforce level) even in non-collective scenarios.
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.
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.
Unfair dismissal; procedure; reliance on the wrong reason for dismissal in the letter was unfair.
Unfair Dismissal; pandemics; fair dismissal for a driver refusing to wear a face mask at a client site (breach of instruction).
Unfair Dismissal; pandemics; fair dismissal for refusing vaccination in a care home setting where it was a reasonable management instruction.
Unfair dismissal; consistency; inconsistent treatment of employees for the same offence can render dismissal unfair.