Unfair dismissal is one of the most commonly pursued types of employment law cases. This can encompass numerous different circumstances. Below are two examples of the unfair dismissal cases which our Employment Solicitors have dealt with. The first case example addresses a dispute as to whether there had been an unfair dismissal or a resignation. The second deals with whether an employee had been wrongly accused of gross misconduct, for which she had been dismissed.
Unfair Dismissal or Resignation?
There is sometimes a dispute as to whether an employee has resigned or been dismissed. We recently assisted a client in this situation.
Our client, Mr A, had been employed for a period of 7 years when he became unwell due to stress at work.
Mr A had a Transient Ischaemic Attack (TIA) and was told by his doctor that this was stress induced. Although Mr A was advised his role had the benefit of a full contractual sickness pay, having been signed off work he only received 1 week of full pay and statutory sick pay thereafter.
A heated discussion then occurred between Mr A and his employer. The employer alleged Mr A had said words to the effect of a resignation. The employer also alleged that Mr A agreed to leave at an undetermined future date when it was convenient for the business.
After a further period of sickness Mr A again did not receive sick pay. When this was queried with his employer, he was informed that they had accepted his verbal resignation and this had been confirmed in a letter. Mr A had not received this letter.
We advised Mr A that he would have a potential claim in the Employment Tribunal (ET) for unfair dismissal, even though his employer would argue that he had resigned.
In cases such as this it will be a matter for the Employment Tribunal to decide on what was actually said during the discussion using the verbal evidence from both the employee and the employer.
If the words or actions were found to be ambiguous, then the Employment Tribunal will apply an objective test based on all of the surrounding circumstances and the nature of the workplace. If after this test the Employment Tribunal still cannot decide on the intention of the parties, it will then assess how a reasonable employer or employee would have understood the words/conduct in light of the circumstances.
Parties are generally permitted to rely on words and actions that were not ambiguous. However, resignations can typically be excluded from this general rule if it appears as though they were made in the heat of the moment. The Employment Tribunal has realised that in such cases the words should not be taken as seriously by an employer.
In cases of resignations in the heat of the moment, it has been held that an employee should be given a chance to cool off. It will be for the employer to satisfy themselves what the employee really intended by their words or actions. In a lot of these cases, it would be reasonable to expect a follow-up in writing, but this will not always happen. Each case will be determined on its own facts and therefore the credibility of each witness appearing before the Employment Judge will be key.
In MR A’s case we considered that, based on the available evidence, an Employment Tribunal would conclude he had been dismissed unfairly. The employer did not attempt to clarify the situation regarding whether Mr A had resigned or not during the altercation, and there was no follow-up correspondence.
Believing Mr A had prospects of succeeding in a claim, we began ACAS Early Conciliation on his behalf.
As part of this process we advised MR A on the likely compensation he would receive if successful at an Employment Tribunal. We took into account the fact that the Employment Tribunal could decide Mr A had contributed to his dismissal, and so might reduce his compensation to reflect this.
Using these figures we sought to negotiate with the employer during Early Conciliation. By setting out our position to the employer and confirming our intention to litigate if necessary, we secured an early settlement for Mr A, including a positive reference.
Mr A was happy and relieved that he would receive financial compensation without the need to go to an Employment Tribunal.
Conduct and Unfair Dismissal
In this case Mrs B had been employed for around 3 years when she was dismissed for gross misconduct. Her employer argued that a series of actions cumulatively amounted to gross misconduct. These actions included:
- Leaving lights on at the end of the day
- Not completing a building check, and
- Leaving keys in an unsecure location.
For an employee to argue their dismissal to be unfair they must have 2 years’ continuous service, which Mrs B had (although there are some exceptions to this 2 year rule, such as dismissals involving discrimination).
Having reviewed Mrs B’s documentation and considered the relevant law, our Employment Solicitors concluded that her dismissal was unfair and that an Employment Tribunal claim was more likely than not to succeed.
When considering cases of alleged gross misconduct there are some strict legal guidelines which I will now explain.
The burden is on the employer to prove, on the balance of probabilities, that there was a fair reason in law for the dismissal. If the employer succeeds in so doing, the Employment Tribunal will then move on and consider the fairness of the dismissal in the circumstances. At this second stage the burden of proof is neutral and the Employment Tribunal will be guided by the famous judgment in British Home Stores Ltd v Burchell  IRLR 379. This case established a 3 stage test as follows:
- Did the employer have a genuine belief in the misconduct found to have occurred?
- Was that belief based on reasonable grounds?
- Did the employer carry out a reasonable investigation into the matter?
There is an inevitable overlap between the various stages and it is to be noted that a failure to meet the standard set by any one of these tests does not automatically render a dismissal unfair. It is always a matter for consideration of the overall circumstances.
In addition, the Employment Tribunal will consider procedural complaints and whether the dismissal lay within the ‘band of reasonable responses’, meaning was the decision to dismiss one that a reasonable employer could impose?
In Mrs B’s case, we considered that the employer would be able to show a genuine belief in the misconduct. This stage of the test is not about whether there actually was misconduct or, even if there was, whether it was sufficient to result in dismissal: it is purely about the reason for the decision. Further, we considered an Employment Tribunal would accept that the employer had that belief on reasonable grounds.
Where we felt Mrs B did have a case was in relation to the investigation. It was apparent that the employer did not speak to all those involved or seek witness statements from the relevant people. On this basis we did not consider the investigation to be reasonable.
In addition, we felt the decision to dismiss Mrs B was outside the range of reasonable responses.
The employer argued that cumulatively the allegations amounted to gross misconduct, such that dismissal was justified. In examining that decision, it would be for the Employment Tribunal to decide whether dismissal was an option available to a reasonable employer. Crucially it is not for the Employment Tribunal to substitute its own decision. It is perfectly common for an Employment Tribunal to find that a dismissal decision is very harsh, but not unreasonable.
We concluded that the Employment Tribunal was unlikely to regard the allegations as reasonably justifying dismissal. Mrs B had a clean disciplinary record; there was significant mitigation and none of the allegations were that serious in isolation.
We were unable to reach a settlement during ACAS Early Conciliation (a prerequisite to lodging a claim) so drafted and submitted Mrs B’s claim to the Employment Tribunal. The employer than had 28 days to submit their response.
After the employer’s response to Mrs B’s claim was received, settlement negotiations began and Mrs B successfully settled her claim in return for financial compensation. Her claim was then withdrawn from the Employment Tribunal.
If you have any questions about unfair dismissal, our Employment Solicitors can help you.