unfair dismissal

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The government’s plans for unfair dismissal to become a day-one right (subject to reasonable use of probationary periods) create an uncertain time for employers, particularly those currently taking on new hires or entering into fixed term contracts. While we await detail of the government’s plans, we take a brief look at the history of the qualifying period and the transitional arrangements which have applied, the latter potentially indicative of what the arrangements will be this time around.

The right not to be unfairly dismissed has been part of established UK employment law since 1971 and is currently legislated for in the Employment Rights Act 1996. Although there are some exceptions, the right has always been subject to a qualifying period of service, i.e., that the employee must have been working for their employer for a prescribed period of time before they have unfair dismissal rights.Continue Reading Transition arrangements for a change in unfair dismissal qualification

The most significant UK employment law reform for 30 years includes radical plans for unfair dismissal rights to be available from day one of employment. When this was announced before the election, the government indicated that this would not prevent the “fair and transparent” use of probationary periods to assess new hires, and the Financial Times reported last week that employers will be able to engage new staff on probationary periods of up to six months, allowing them to be dismissed more easily in this time. 

This, naturally, raises the question as to how a six-month probationary period will sit alongside a day-one right. The answer to that question remains unclear. Continue Reading Day-one unfair dismissal rights and a six-month probationary period – how will that work?

The recent case of Dafiaghor-Olomu v Community Integrated Care [2022] EAT 84 is a good demonstration of the rough justice that is occasionally dispensed by the Employment Tribunal system.

It is well known that the amount of compensation that an employer can be ordered to pay for a straightforward unfair dismissal claim is subject to a statutory maximum amount of 52 weeks’ pay (commonly referred to as the “statutory cap”).  In Dafiaghor-Olomu v Community Integrated Care, Mrs Dafiaghor-Olomu won her unfair dismissal claim against her employer. At the remedies hearing, the tribunal awarded her £46,153.55 in compensation and the employer paid this amount in full. The claimant successfully appealed the outcome of the remedies hearing and her award was subsequently increased to £128,961.59 following a second remedies hearing. The claimant appealed again to the EAT in respect of the remedy.

The key question for the EAT to determine was how the statutory cap should be applied in this unusual scenario in light of the earlier payment of £46,153.55. In particular, the EAT had to decide whether:

  1. The employer should be given credit for the earlier payment of £46,153.55 before the statutory cap was applied leaving the employer with an outstanding balance to pay of £74,200 (the statutory cap at the time of dismissal); or
  2. The statutory cap should be applied to the total award first, and then the employer given credit for the earlier payment of £46,153.55, leaving the employer with an outstanding balance to pay of £28,046.45.

Continue Reading Unfair Dismissal Compensatory Awards – The Cost of Compliance

In Newbound v Thames Water Utilities Ltd, the Court of Appeal has restored an Employment Tribunal’s decision that the Claimant was unfairly dismissed for a breach of his employer’s health and safety procedures.

The case is a reminder that, although an employer’s decision to dismiss must only be within a band of reasonable responses to be fair, that band is limited. In particular, dismissals for misconduct are likely to be outside the band of reasonable responses where there is a disparity in treatment between employees and where the rules relied upon have not been sufficiently well publicised.

The facts of the case

Mr. Newbound had been employed in sewer maintenance by Thames Water for 34 years. In summer 2011, Mr. Newbound was assigned to an annual inspection of a sewer in East London. He discussed the work with his manager beforehand and it was agreed that the work would be conducted with the benefit of breathing apparatus feeding air from above ground. They then went through the safe system of work form, SHE4, which applies to more complex tasks. The SHE4 was a new document and stipulated that breathing apparatus must be used. Mr. Newbound was to work alongside Mr. King (a contractor) and Mr. Andrews, “the competent person in charge”, responsible for health, safety and entry.

Whilst on site, Mr. Newbound, Mr. King and Mr. Andrews discussed whether they in fact needed the breathing apparatus. Following a gas test, they took the view that they did not. This subsequently came to Mr. Newbound’s manager’s attention.

Continue Reading Just how wide is the band of reasonable responses for misconduct dismissals?

For employers wanting to bring an employment relationship to an end, whether for disciplinary or performance related reasons or simply because it is not working out, it is often difficult to judge the right time to have a ‘without prejudice’ conversation with an employee. Get it wrong and the contents of that discussion may be used by an employee in a subsequent Tribunal claim as evidence of an admission of guilt or constructive dismissal. The recent EAT case of Portnykh v Nomura International Plc gives some useful guidance as to when the ‘without prejudice’ rule applies.
Continue Reading Settlement discussions – when can employers safely use the ‘without prejudice’ rule?

The sun may have finally decided to make an appearance but this is no indication of a relaxing summer break for employment specialists!

A number of key employment law provisions came into force on 25 June 2013, with 29 July 2013 as the next key date for legislative reform. We take a look at what employment-related legislative changes are in store this summer.Continue Reading UK Legislative Reform – No Summer Break

The Chancellor of the Exchequer, George Osborne, has announced plans to introduce a new type of employment contract – an ‘owner-employee’ employment contract. ‘Owner-employees’ will receive between £2,000 and £50,000 worth of shares (which will be exempt from capital gains tax) in exchange for giving up certain rights, including redundancy rights, the right to claim unfair dismissal and the right to request flexible working or time off for training.  Owner-employees will also be required to give 16 weeks’ notice of their return from maternity leave, rather than the current 8 weeks.Continue Reading Plans for new ‘owner-employee’ employment contracts announced

In Abellio London Ltd (Formerly Travel London Ltd) v Musse and others UKEAT 0283/11 and 0631/11, the Employment Appeal Tribunal (“EAT”) ruled that a relocation of six miles within central London which resulted in the employees having to travel an extra one to two hours to work following a service provision change amounted to a substantial change to employees’ working conditions to their material detriment entitling them to resign under regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). As regulation 4(9) of TUPE deems an employee’s resignation to be a “dismissal” where it is in response to such a change, the employees concerned were entitled to claim automatic unfair dismissal and liability for their dismissals passed to the transferee. Since it would not have mattered had the contracts of employment contained valid mobility clauses, the decision is not good news for transferees in TUPE transfer situations. The decision sets a very low hurdle for employees to overcome in order to be able to resign in reliance on regulation 4(9) of TUPE. Transferees will need to consider the extent of this risk when negotiating transfer provisions with the transferor, and, if necessary, seek indemnity protection.
Continue Reading Service provision changes: Relocation because of TUPE transfer was a substantial change to employees’ material detriment

In a speech this afternoon to the Conservative Party Conference, George Osborne Chancellor of the Exchequer has confirmed that the qualifying period for standard unfair dismissal claims is to be increased from one year to two from 6 April 2012. This statement does not come as a great surprise since the issue was the subject…