Understanding Unfair Dismissal Claims

Simon can claim unfair dismissal. Simon qualifies for the right to bring the statutory claim of unfair dismissal because he is an employee. Under S 108 of ERA, if an employee has worked continuously for a period of 2 years prior to the termination, then they have gained the right not to be unfairly dismissed. The employee claiming unfair dismissal has to prove that he is qualified to bring the claim and that he has been dismissed in one of the three ways: Direct dismissal; Expiry of a limited term without renewal; Constructive dismissal (S 95 ERA). This is the scenario that presents an excellent case study for students who are seeking Law Dissertation Help.

Hollygate will say that Simon is terminated under the capability ground (S 98 ERA).

Hollygate will need to establish that Simon is not competent for the job and that it is has reasonable grounds for forming that belief (S 98 ERA).

There are five steps in the Procedural requirement to be followed by Hollygate in capability related dismissal:

Appraisal has to be carried out. The employee has to be made aware of failure to meet standards by reference to objective criteria. At this point, the employer must have objective evidence of the poor performance of the employee.

Warning must be given and the employer should inform the employee of the consequences if they are not able to improve their performance. If formal warning is given, then ACAS code will also apply.

After the informal warning, employee must be given a reasonable time to improve. How long will depend on the nature of the job, the employee’s status,

The employer must make available reasonable support in the form of training and supervision.

Alternative employment may be given before the employee is terminated, if possible.

Where a formal warning is given in step B above, the ACAS Code becomes applicable. Under the Code, the following procedure is to be followed before dismissal of the employee. This procedure is as follows:

The employer has to invite the employee to a disciplinary meeting. The employer must inform the employee of such meeting in writing along with the nature of the complaint and the date, time and venue of the meeting. The employee has the right to be accompanied. The possible consequences that may come from the meeting have to be apprised to the employee.

The meeting should be held within reasonable period of time and adequate time should be given to the employee to prepare their case. At the meeting the employer should share the evidence and the complaint details with the employee. The employee should be heard and be given opportunity to answer allegations made. The employee may even ask questions and present evidence at the meeting.

The action to be taken with relation to the employee after the meeting, should be informed to the employee in writing. Decision to dismiss can only be taken by someone with authority.

The employee has the right to appeal against the decision of the employer. If they wish to exercise this right, then they can notify the employer in writing. The appeal cannot be placed before the same manager who was involved in the disciplinary hearing.

The result of the appeal should be informed to the employee in writing within a reasonable period of time.

It is important that Hollygate takes these steps because apart from the ACAS Code, the common law is also applicable and under the common law. There are also established procedures at common law and contractual that are applicable.

In this situation, they will enter into a settlement agreement, which is a legally binding contract waiving one party’s rights to make a claim covered by the agreement before a court.

In order to be valid, settlement agreement must be in writing and must relate to a specific complaint or proceedings after the employee has received advice from a relevant independent adviser who a professional indemnity insurance for offering advice. The agreement must identify the adviser and state that the statutory conditions regulating the settlement agreement are met with. Section 111A of the ERA prevents pre-termination negotiations from being admissible in the court as evidence.

Negotiations between employer and employee can be treated as 'pre-termination negotiations' in S 111A ERA. This means that the conversations between the employer and employee are 'off the record' and cannot be referred to in any unfair dismissal proceedings. Hollygate can make reference to this procedure before Simon as they are negotiating and Hollygate does not want their conversation to be reported anywhere.

Hollygate faces a claim of unfair dismissal if they terminate Dave Hancock (S 95 ERA).

Hollygate can defend the claim on the ground of conduct (S 98 ERA). One of the reasons given for misconduct is fighting with colleagues. Employer has to establish reasonableness (British Home Stores Ltd v Burchell [1978] IRLR 379) by establishing belief in the guilt of the employee, reasonable grounds for the belief, and adequate investigation into the matter.

ET1 can be made within 3 months of the date of dismissal (111(2)(a), ERA 1996). The limitation is till 8 November 2020.

Hollygate has 28 days to return ET3 form else a default judgment can be given.

Basic award is provided in S 119 ERA. It is paid on the basis of age, length of service and gross week pay. Dave is 44 years old and is entitled to 1½ week pay. Dave’s weekly pay is £1212 (£63,000/52 weeks). However, maximum gross week pay at this time is £538. So, Dave is entitled to 1.5 weeks' pay for each complete year of employment after he was 41 years or more. As Dave joined the school 2 years ago, he is entitled to £1614 [£807 (£538*1.5) * 2].

Maximum compensatory award is calculated under S 118 ERA. This award is given on the basis of what is just and equitable in the case. Calculation is done based on loss suffered by the applicant. This is calculated to include Net loss, which also include wages for the notice period and future loss that is, loss when employee remains unemployed. 52 weeks actual gross pay is the maximum that Dave can claim as compensatory award if he establishes that he has not found any employment after the current employment comes to an end.

Disability is defined in S 6 of the Equality Act (EA) and explained in schedule 1 to the EA. Disability means physical impairment, which has substantial and long term adverse effect on day to day activity. Medical evidence that shows that the effect has been more than minor and lasted at least 12 months is needed. In this case, disability can be established if a visual impairment can be medically established, that is, blindness, severe sight impairment, partial sighted. A progressive condition is also counted as disability where the condition is one that gets worse over time (S8 EA Schedule 1). In this situation, Najma has a problem with the retina in her left eye and is faced with a real danger of loss of vision at some stage. However, there should be an interference with day to day activities for the disability to be established (CC of Lothian Police v Cumming [2010] IRLR 109).

Hollygate has to follow a fair procedure with regard to Najma’s situation. If Najma is considered disabled, and cannot perform the functions at her present role, then alternative employment can be provided for her. Hollygate must avoid discriminating against Najma, and taken into consideration all the reasonable adjustments to enable her to continue working or return to the workplace in the future. Adjustments can be with respect to the working hours or any equipment that is needed to enable the employee to continue working (S20 EA).

Najma can bring a claim of unfair dismissal under the ERA for the dismissal and a claim of victimisation under S 27 of EA (HM Prison Service v Ibimidun [2008]) and a claim of direct discrimination. Victimisation means treating somebody less favourably than others because they tried to make, or made, a complaint about discrimination. Under ERA, she can bring a claim for unfair dismissal for not following the procedure related to capability dismissal (S95 ERA). She can also claim direct discrimination under S13 EA. She can make the claim before the Employment Tribunal. She can claim that her disability was the reason for her dismissal, making out a claim of direct discrimination under S13 EA. Support can be found in the case of Nottingham County Council v Meikle, wherein Meikle’s vision was deteriorating, and multiple requests for adjustments, like changing the location of her classroom were disregarded. Her resignation was treated as a constructive dismissal and breach of contract. In this case, Najma’s dismissal for absence due to medical reasons can be treated as a direct discrimination. Najma will have to show medical evidence. She does not have to show a comparator for establishing victimisation as this was removed from the EA.

Under EA, Najma is entitled to compensation for financial loss due to discrimination, which includes loss up to getting a new job and compensation for 'injury to feelings' caused by discrimination. Her compensation will be calculated on the basis of loss of earnings. For injury to feelings, she was be awarded on the basis of the ‘Vento band’ which is used to determine the compensation to be paid as per the bands (Vento v Chief Constable of West Yorkshire Police). Depending on how serious the tribunal thinks the discrimination to be, she can be awarded between £900 to 45,000.

Wrongful dismissal and damages arising out of termination of contract.

This would amount to a debt claim. The period remaining on the contract would be part of the calculation for the debt based on the salary of £60,000 per annum. and amount equal to contribution of 5% of his annual salary into his private pension scheme and a company car allowance equivalent to £500 per month. The damages an employee may claim for wrongful dismissal are limited to the notice period or the period remaining to complete any contractual procedure. Damages have to reflect the net value of salary and other contractual benefits.

He is likely to make the claim before a civil court as this involves a contractual claim and damages. This case involves a claim for compensation for which the proper court is the civil court. In case of breach of contract claims of up to £25,000 in value, the forum may be employment tribunal. However, in this case as the salary is £60,000 and therefore the breach of contract claim is likely to be more than £25,000 in value, the ordinary civil courts would be the appropriate forum.

In case Richard gets another job, the new salary is to be taken into account when calculating the loss and this affects the compensation awarded to him. In other words, the increase in the new salary can be used to decrease the loss of salary correspondingly while calculating compensation.

In case there was a PILON clause instead, the employer would be entitled to dismiss Richard immediately by making a payment in lieu of notice period and Richard could not make a wrongful dismissal claim and claim compensation. In such a case, the answer to 4 would change and Richard’s new job salary does not have any impact on the compensation paid to him by the employer as PILON.

The company can defend the claim of the basis of Clause 10(c) of the employment agreement, which allows the company to terminate the employment without notice or payment in lieu of notice if Richard is incompetent in the performance of his duties. This can be established by the fact that Richard lost an important client.

Clause 15 of the employment agreement deals with a non-solicitation clause and non-compete clause. Non-solicitation clause prevents the employee from approaching the employer’s existing clients or staff after end of agreement. A non-compete clause prevents the employee from leaving employer to work for a company that they compete with. If the clause is narrowly defined and also enforced for reasonable time that is required to protect the business then it can be enforced. A non-compete clause that is for more than 12 months is generally unreasonable except in some circumstances (Tillman v Egon Zehnder Ltd [2019] UKSC 32).

Yes. Although, the company has right to protection of its information under the common law as provided by the implied duty of confidentiality and duty of good faith (Horkulak v Cantor Fitzgerald), it is advisable to include an express confidentiality clauses in the employment contract to protect company information.

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