Fairness of Dismissal
Dr Katarzyna Gromek-Broc
Who can claim unfair dismissal?
Preliminary Questions
 Employees
only
 Continuous employment
 Within the scope of ERA
 Has the employee been ‘dismissed’?
Effective date of termination (EDT)
Fairness of Dismissal
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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)
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:
 capability or qualifications: s 98(2)(a) ERA
 conduct: s 98(2)(b) ERA
 retirement: Section 98 (new since Age Regulations 2006)
 redundancy: s 98(2)(c) ERA
 contravention of a legal duty: s 98(2)(d) 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
 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’
Second stage
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the ‘range of reasonable responses’ test,
the tribunal as an ‘industrial jury’
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”
Redundancy
Theme
 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?)
Redundancy
Qualifying conditions to claim redundancy
 the right to redundancy pay is available to
employees only s 135 ERA (definition of
employee: 230 ERA)
 2 years’ continuous employment
 excluded categories: persons under 20,
retirement age
 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 particular workplace where
the employee was employed, or
 a reduction in the size of the workforce
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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
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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’
 Haden Carrier Ltd v. Cowan [1983] ICR 1 EAT
 Bass Leisure v. Thomas [1994] IRLR 104 EAT
 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
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Unfair Redundancy
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Redundancy is a potentially fair reason for dismissal: s
98(2)(c) ERA
But a redundancy dismissal can be unfair if
(a) it was automatically unfair (look at the new grounds)
trade union reasons: s 153 TULRCA 1992
pregnancy or maternity: s 99 ERA
health and safety: s 100 ERA
assertion of certain statutory rights: s 104 ERA
(b) it was unreasonable
an unfair selection procedure was used
there was no prior warning or consultation with
employees
redeployment was not considered