SEMINAR 13

UNFAIR DISMISSAL 1 -Eligibility to Claim

Reading

Selwyn 17.5 – 17.71

Western Excavating (ECC) Ltd v Sharp 1978 IRLR 27.

1. What are the eligibility requirements to make a claim of unfair dismissal?

Employee, min of 2 years of continuous service if your employed from 6 April 2012, contract
of employment cannot be an illegal contract, must be working in GB or close connection to
GB and you have to be dismissed.

2. What categories of workers are excluded from the unfair dismissal provisions?

Crown service where there are exempting certificate, police, members of armed forces,
share fisherman, working outside GB

3. What tests are used by the tribunals in determining whether there has been a dismissal
within the meaning of s95 ERA 1996.

a. Employer terminates with / without notice – Futty v Brekkes, Tanner v Kean – your
finished with me
b. Fixed term contract comes to an end due to effluxion of time
c. Employer commits fundamental breach of the contract entitling the employee to resign
and claim what is in law called constructive dismissal – Western Escavating v Sharp, as
per Lord Denning

4. Sheila has been employed by Turn Down the Heat (TDH), a charity promoting climate
change since 2011. She is head of finance. TDH operate from a single office in Kings Cross,
London. Sheila is an Australian citizen. Last year, Shelia decide to return to Australia as her
mother, who lived there was suffering from dementia. TDH agreed that she could continue
as Head of Finance and wold be able to work remotely from Australia, provided she returned
to the UK each year to do the annual audit, which she did. In fact Sheila returned to TDH
three times a year for various meetings. Sheila paid tax in accordance with the Australian tax
system. Last month Shelia said she would not be able to attend for the annual audit as her
mother was ill. The CEO of TDH got very angry and told Sheila that she was dismissed.

Advise Sheila whether she is eligible to bring a claim for unfair dismissal.

Whether the test in Lawson v Serco is satisfied (HOL)

-where is the employee based, what does the contract say (contract specifcy which law), in
what currency is the employee paid, where is employer based, what is the nature of
employers business, where does employee pay tax, is employee entitled to any civil service
pension
 Employer based in London, initially worked there and then moved to Australia and paid tax
there.

Lodge v Dignity & Choice in Dying – EAT found she was within the jurisdiction and she was
merely a virtual/ remote employee.

5. Daniel was delighted when he landed his first job after leaving school as an assistant in a
shoe shop in Oxford Street. He started on the 1st August 2017. He made a good impression
on his manager and was soon promoted to taking charge of the Stock Room. On coming in
to work a few weeks ago Daniel was told to see the manager in his office on the first floor.
The manager was somewhat critical of the condition in which the stock room had been left
the night before and Daniel became upset as he felt he was not at fault. He stormed out of
the room and down the stairs to the shop floor. Unfortunately he slipped and fell, twisting
his ankle painfully. He shouted to the assistant manager “Unlock the door. Unlock the door”
and, as he pushed his way out, “I’m out of here” He then went to A&E, where it was
established that there was no serious damage, before returning home. He did not go into
work the following day, although his father rang the store and explained that his son would
be returning in a few days. The manager consulted Head Office who told him that Daniel
had clearly resigned and to take him off the pay role. When Daniel returned to work he was
informed that he was no longer an employee

Was the advice given to the manager correct? Can Daniel make a claim for unfair or
wrongful dismissal?

Does the statement “I’m out of here” amount to resignation? Resignations in the heat of the
moment – so it is objective test in light of all the surrounding circumstances.

What should the rightful advise be? -allow for cooling off period, write to the employee
concerned to seek for clarification.

6. If ‘X’ resigns because he has not been awarded a salary increase for two years (unlike his
colleagues), would this entitle him to claim constructive dismissal?

Employer shall not act arbitrarily, capriciously or inequitably in matters of remuneration.

There must be valid and reasonable reasons for non increment.

Murco Petroleum v Forge 1987

FC Gardener Ltd v Beresford 1978

7. If “X” is found to have been constructively dismissed, does this necessarily mean he will be
found by the tribunal to have been unfairly dismissed

Savoia v Children Herb Farms Ltd – packing supervisor – packing foreman

The 1st stage – does your resignation amount to constructive dismissal

The 2nd stage – is the dismissal unfair – if the employer can give reasons, then it would be
not unfair dismissal

8. Jemima has been employed in the Human Resources Department of Wightshire County
Council for the last four years. During that time she has developed a close relationship with
her line manager Joe. Their Head of Department, Diana, suspects that this relationship is
more than just a working partnership and disapproves strongly of such liaisons, which are
contrary to clearly publicised council policy.

Diana vents her disapproval by constantly finding fault with Jemima, asking her to undertake
extra projects and criticising her in front of colleagues. The final straw came at a staff dinner
at the end of the financial year, when Diana, reviewing the year and praising the work of the
H.R. department, concluded with the hope that “Next year Jemima will be able to
concentrate on your work”

Jemima left the dinner in tears and went straight to see the director of Human Resources at
the Council. He told her to put her complaint in writing which Jemima did the very next day
and requested a formal meeting to discuss the matter. She did not receive a reply. Jemima
has now been signed off work for a month by her doctor and when she rang the secretary of
the Human Resources Director to enquire whether a date for her grievance meeting had
been arranged she was told that the Director was far too busy to deal with her complaint.

Advise Jemima.

Implied term of trust and confidence – one is the conduct of Diana, HOD and the conduct of
the conduct of the director. – Abbey National v Fairbrother

Must resign within a reasonable period of time, if not will be taken to have affirmed the
breaches.

Must make a claim within 3 months from the EDT.

Remedies – basic and compensatory award, reinstatement or reengagement

9. What are the main differences between a claim for wrongful dismissal and one for unfair
dismissal?

Wrongful dismissal – common law claim, no eligibility requirements, based on breach of

contract, remedies – net wage for correct notice period/injunction/judicial review, either
sue in ET or civil courts
 Unfair dismissal – statutory claim, 2 years continuous service, based on reasonableness,
remedies are reinstatement, reengagement and compensation and can only be filed at ET
only within 3 months from the EDT.

Learning Outcomes

By the end of this workshop you should be able to:

demonstrate in depth study of the law governing continuity of service and termination at common
law

demonstrate knowledge and understanding of eligibility to claim unfair dismissal

demonstrate an ability to use information from a variety of sources, such as texts, lecture notes and
cases, ranking information according to importance

demonstrate, through answering and discussing seminar questions, a basic ability to make a critical
judgment of the merits of a particular viewpoint and to make and present a reasoned choice
between alternative solutions

apply your legal knowledge to a relevant problem of some complexity