Unfair Dismissal Cases

One of the most important statutory (legal) rights is the right to claim unfair dismissal.  A great deal of unfair dismissal cases have been heard by employment tribunals and what follows is a consideration of the most important of those cases.  An employee proposing to make an unfair dismissal claim must show that he has been dismissed and that the dismissal was unfair.

Has there been a dismissal?

Many unfair dismissal cases have been heard concerning whether or not an employee has in fact been dismissed,  broadly, they break down into 5 areas.

• Unfair dismissal cases concerning ambiguous statements made by the employer or the employer’s representative.
• Unfair dismissal cases concerning actions amounting to dismissal by the employer. (constructive dismissal)
• Unfair dismissal cases concerning employee who have been asked to resign
• Unfair dismissal cases  concerning employees who have resigned when their employer has acted in bad faith.
• Unfair dismissal cases concerning threatened future dismissals

They are considered in further detail below.

Unfair Dismissal Cases examples

Statements Made by Employers

Futty v D and D Brekkes Ltd [1974] IRLR 130 

This case concerns a  man employed in Hull as a fish filleter being rebuked by his supervisor.  The supervisor stated, “If you don’t like the job, f**** off.”   Futty claimed that this amounted to a dismissal and looked for alternative employment.  The tribunal found that this was not a dismissal but a ‘general exhortations to get on with the job’.

Palmanor Ltd v Cedron, EAT 1978 IRLR 303

Cedron was a night-club barman who argued with his employer and was sworn at by a manager.  Cedron criticised the manager for his foul language and was told that if he did not like the language then he could go.  Cedron considered himself to have been dismissed.  A tribunal took the view that this language did amount to constructive dismissal and as such the dismissal was fair.

Actions Amounting to Dismissal

The actions of employers can often lead their employees into considering themselves to have been dismissed.

Hogg v Dover College [1990] ICR 39 EAT

In this case the respondent had written to the claimant removing him from his current position and offering him new terms and conditions.  The terms and conditions were so different from those in his position as Head of History that the tribunal believed he was entitled to consider himself dismissed.  This was in effect repudiatory breach of contract otherwise known as constructive dismissal despite the fact that Hogg had remained in employment.

 Roberts v West Coast Trains [2004] EWCA

This more recent case involves an employee who was in fact dismissed by his employer.  He appealed his dismissal with his employer and at the same time issued a case to an employment tribunal for unfair dismissal.  He did not return to work whilst his appeal was being heard by his employer.  He was not deemed to have been dismissed because he could have been reinstated following his appeal to his employer.

Being asked to resign

It has long been established that if an employee is asked to resign, effectively, ” jump or we will push you” then the employee may consider himself to have been dismissed.

However an employee who resigns and then negotiates a favourable financial package with his employer will be considered to have resigned.

Martin v Glwyned Distribution Ltd 1983 ICR 511

The statement of the judge in this case has been used to determine the principles that need to be considered in cases of enforced resignation.  It was held that, whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question will always remain the same, “Who really terminated the contract of employment?” if the answer is the employer, there is a dismissal.’

Crowley v Ashland UK Chemicals Ltd EAT 31/79

A personnel manager was asked to resign, he negotiated a financial settlement for himself in negotiations lasting four days.  it was held that there had not been a dismissal.

Sandhu v Jan de Rijk Transport Limited [2007] EWCA Civ 430

This case is a more recent example of an employee who would have been entitled to think that he had been dismissed but, having negotiated a financial package, was subsequently held at tribunal to have resigned.

Resignation caused by the Employer Acting in Bad Faith is a Dismissal

There are circumstances in which an employee does not intend to resign but is tricked into doing so in bad faith by an employer.  A very obvious example of this might be an employer asking an employee to sign a document which amounts to a resignation without making it clear that it does so.   Rarely will the circumstances be so clear cut however.

Caledonian Mining Company Limited v Bassett and another [1987] ICR 425 EAT

In this case mine workers were told that they were at risk of redundancy and and were asked if they would relocate to work at another site.  They then resigned and accepted positions with another employer: National Coal Board (NCB) which involved a change in terms and conditions and a reduction in pay.  There was a gap between their resignation and the offers of new employment from the NCB.  A tribunal found that the Caledonian Mining Company had acted in bad faith in order to avoid making redundancy payments.

Resigning in response to the threat of future dismissals

If an employee resigns because they learn that they are going to be dismissed at some future date then this would not automatically be deemed as a dismissal.

If, however, the future dismissal is given more precisely then this might be considered notice.  In other words, if an employer states that an employee will be dismissed on the 31st December then the employee may consider himself to have been dismissed.

Unfair Dismissal Cases – Fairness or Otherwise of Dismissal

Having shown that he has actually been dismissed an employee issuing a claim for unfair dismissal must then go on to show that the dismissal was unfair.  There are six reasons which render a dismissal unfair.

1. You are not Capable of doing your job;
2. You have committed a series of acts of Misconduct or a single act of Gross Misconduct;
3. Your position is redundant;
4. You have reached retirement age;
5. By continuing to employ you, your employer would contravene a Duty or a Restriction, or;
6. For some other substantial reason (SOSR).

Reasonableness of dismissal

Once an employer has shown a potentially fair reason for dismissal then a tribunal will consider whether the dismissal was reasonable for that reason.

Chubb Fire Security Ltd v Harper 1983 IRLR EAT

In this case the employee was dismissed because he would not accept a drop in pay when his employer’s business was reorganised.  The tribunal accepted the reasoning of the employer that the dismissal was fair due to some other substantial reason (SOSR).  The substantial reason being that the employer needed to implement business change.

BHS v Burchell [1978] IRLR 379

No consideration of the key unfair dismissal cases would be complete without the inclusion of Burchell.  This key case  concerns dismissals following alleged misconduct.  It gave rise to the Burchell Test.  This test, somewhat succinctly, reduces the assessment of the reasonableness of an employer’s actions when dismissing an employee for alleged misconduct to three questions;

Note that the test does not require the employee to have been guilty of misconduct.  Even if an employee is later able to prove his innocence his employer may still be considered reasonable in dismissing him.

Loss of Trust and Confidence

The most commonly relied on type of  SOSR dismissal is that of loss of trust and confidence.  It has been examined by tribunal on many occasions.

Perkin v St George’s Healthcare NHS Trust [2005]

In this case the Finance Director of an NHS Trust, Mr Perkins, was alleged by his employer to have issues regarding his personality and was intimidating other executives in meetings.  The Trust made no complaint about his capability and Perkins had a good working relationship with staff in his own department.Perkins was dismissed for Some Other Substantial Reason and the Trust stated that there had been a loss of trust and confidence.  This case established that whilst it is not possible for a person to be dismissed on the basis of his personality, if it can be made out that an employee’s personality is potentially damaging to the running of the business then they may be fairly dismissed on that basis.