Fairness of Dismissal Dr Katarzyna Gromek-Broc

Who can claim unfair dismissal? Preliminary Questions Employees only Employees only Continuous employment Continuous employment Within the scope of ERA Within the scope of ERA Has the employee been ‘dismissed’? Has the employee been ‘dismissed’? Effective date of termination (EDT)

Fairness of Dismissal Two stage test of fairness Two stage test of fairness First: the burden of proof is on the employer to establish the dismissal was for a ‘potentially fair reason’ s 98(1)(a) First: the burden of proof is on the employer to establish the dismissal was for a ‘potentially fair reason’ s 98(1)(a) Second: When the employer has shown the reason for the dismissal, the tribunal decides whether the employer has ‘acted reasonably or unreasonably’ in treating it as a sufficient reason to dismiss Second: When the employer has shown the reason for the dismissal, the tribunal decides whether the employer has ‘acted reasonably or unreasonably’ in treating it as a sufficient reason to dismiss

First stage of fairness The employer must establish the dismissal was for a ‘potentially fair reason’ s 98(1)(a) Potentially fair reasons: Potentially fair reasons: capability or qualifications: s 98(2)(a) ERA capability or qualifications: s 98(2)(a) ERA conduct: s 98(2)(b) ERA conduct: s 98(2)(b) ERA retirement: Section 98 ( new since Age Regulations 2006 ) retirement: Section 98 ( new since Age Regulations 2006 ) redundancy: s 98(2)(c) ERA redundancy: s 98(2)(c) ERA contravention of a legal duty: s 98(2)(d) ERA contravention of a legal duty: s 98(2)(d) ERA ‘some other substantial reason’: s 98(1)(b) ERA ‘some other substantial reason’: s 98(1)(b) ERA

Second Stage When the employer has shown the reason for the dismissal, the tribunal decides whether the employer has ‘acted reasonably or unreasonably’ in treating it as a sufficient reason to dismiss When the employer has shown the reason for the dismissal, the tribunal decides whether the employer has ‘acted reasonably or unreasonably’ in treating it as a sufficient reason to dismiss the tribunal should decide reasonableness in the circumstances including the ‘size and administrative resources of the employer’s undertaking’ the tribunal should decide reasonableness in the circumstances including the ‘size and administrative resources of the employer’s undertaking’ reasonableness ‘shall be determined in accordance with equity and the substantial merits of the case’ reasonableness ‘shall be determined in accordance with equity and the substantial merits of the case’

Second stage the ‘range of reasonable responses’ test, the ‘range of reasonable responses’ test, the tribunal as an ‘industrial jury’ the tribunal as an ‘industrial jury’ Iceland Frozen Foods Ltd v. Jones (1983) Browne- Wilkinson J: Iceland Frozen Foods Ltd v. Jones (1983) Browne- Wilkinson J: ‘in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer... in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another may quite reasonably take another” ‘in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer... in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another may quite reasonably take another”

Redundancy Theme Theme To what extent does the law question the basis of managerial decisions on redundancies? To what extent does the law question the basis of managerial decisions on redundancies? To what extent are employers forced to contribute to the social costs incurred as a consequence of redundancy decisions?) To what extent are employers forced to contribute to the social costs incurred as a consequence of redundancy decisions?)

Redundancy Qualifying conditions to claim redundancy the right to redundancy pay is available to employees only s 135 ERA (definition of employee: 230 ERA) the right to redundancy pay is available to employees only s 135 ERA (definition of employee: 230 ERA) 2 years’ continuous employment 2 years’ continuous employment excluded categories: persons under 20, retirement age excluded categories: persons under 20, retirement age has the employee been ‘dismissed’? S 136 ERA has the employee been ‘dismissed’? S 136 ERA The claim for redundancy pay must be brought within 6 months of the ‘relevant date’ s 97 ERA

THE MEANING OF REDUNDANCY How to recognise a statutory redundancy situation closure of the business as a whole closure of the business as a whole closure of the particular workplace where the employee was employed, or closure of the particular workplace where the employee was employed, or a reduction in the size of the workforce a reduction in the size of the workforce

Redundancy How far does the law question the basis of managerial decisions on redundancies? Moon v. Homeworthy Furniture Ltd [1977] ICR 117 EAT Kilner Brown J, there ‘cannot be any investigation into the rights and wrongs of the declared redundancy.’

Redundancy 1.The problem with the ‘place where the employee was so employed’ 1.The problem with the ‘place where the employee was so employed’ Nelson v. BBC [1977] ICR 649 CA if the employer’s requirement for the employee to the contractual work has ceased or diminished, the worker will be redundant

Redundancy 2.The problem with ‘work of a particular kind’ 2.The problem with ‘work of a particular kind’ Haden Carrier Ltd v. Cowan [1983] ICR 1 EAT Haden Carrier Ltd v. Cowan [1983] ICR 1 EAT Bass Leisure v. Thomas [1994] IRLR 104 EAT Bass Leisure v. Thomas [1994] IRLR 104 EAT High Table Ltd v. Horst [1997] IRLR 513 CA High Table Ltd v. Horst [1997] IRLR 513 CA it cannot be right to let the contract be the sole determinant, regardless of where the employee actually worked for the employer

Unfair Redundancy Redundancy is a potentially fair reason for dismissal: s 98(2)(c) ERA Redundancy is a potentially fair reason for dismissal: s 98(2)(c) ERA But a redundancy dismissal can be unfair if But a redundancy dismissal can be unfair if (a) it was automatically unfair (look at the new grounds) (a) it was automatically unfair (look at the new grounds) trade union reasons: s 153 TULRCA 1992 trade union reasons: s 153 TULRCA 1992 pregnancy or maternity: s 99 ERA pregnancy or maternity: s 99 ERA health and safety: s 100 ERA health and safety: s 100 ERA assertion of certain statutory rights: s 104 ERA assertion of certain statutory rights: s 104 ERA (b)it was unreasonable (b)it was unreasonable an unfair selection procedure was used an unfair selection procedure was used there was no prior warning or consultation with employees there was no prior warning or consultation with employees redeployment was not considered redeployment was not considered