Examples of Employment Law Cases of Unfair Dismissal
18 September 2019
Unfair dismissal is one of the most common types of employment law cases. Unfair dismissal can take many different forms. Below are two examples of unfair dismissal cases which our Employment Solicitors have dealt with.
The first example looks at a dispute around whether there was unfair dismissal or a resignation. The second deals with whether an employee had been wrongly accused of gross misconduct, which she had then been dismissed for.
Unfair dismissal or resignation?
There is sometimes a dispute around whether an employee has resigned or been dismissed. Our employment solicitors helped a client in this situation.
Our client, Mr A, had been employed for 7 years when he became unwell because of 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 that his role had the benefit of a full contractual sickness pay, once he was signed off work he only received 1 week of full pay and then received statutory sick pay.
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 his role 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 this type of case, it is 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 are found to be ambiguous, then the Employment Tribunal will apply an objective test based on 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 these words or conduct in light of the circumstances.
Employers and employees are generally able to rely on any words or actions that aren't ambiguous, with the exception of resignations made in the heat of the moment. The Employment Tribunal has realised that in these cases the words shouldn't be taken seriously by an employer.
In cases of resignations in the heat of the moment, the Employment Tribunal feels that an employee should be given a chance to cool off. It will be up to the employer to be sure of 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, so 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.
Gross misconduct 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
- Leaving keys in an unsecure location
For an employee to argue that their dismissal is 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 claim, our Employment Solicitors concluded that her dismissal was unfair and that an Employment Tribunal claim for unfair dismissal was likely to succeed.
When it comes to cases of alleged gross misconduct, there are some strict legal guidelines.
The burden is on the employer to prove, on the balance of probabilities, that there was a legally fair reason for the dismissal. If the employer does this successfully, the Employment Tribunal will then move on and consider the fairness of the dismissal in the circumstances. At this stage, the burden of proof is neutral and the Employment Tribunal will be guided by a 3 stage test:
- Did the employer have a genuine belief that the misconduct 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 these 3 stages and failing one of these tests doesn't automatically mean the dismissal was unfair. The overall circumstances always need to be considered.
The Employment Tribunal will also consider whether the dismissal was a reasonable response by the employer.
In Mrs B’s case, our employment solicitors felt that the employer could show that they genuinely believed in the misconduct. We also considered that an Employment Tribunal would accept that the employer had reasonable grounds for that belief.
This stage of the test isn't about whether the misconduct happened or whether it was sufficient grounds for dismissal if it did, it is purely about the reason for the decision.
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 when combined, each of the actions they had alleged amounted to gross misconduct, and that dismissal was justified. It was then for the Employment Tribunal to decide whether dismissal was a reasonable response. It is 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 decide that dismissal was a reasonable response to the allegations. Mrs B had a clean disciplinary record, there was significant mitigation and none of the allegations were that serious on their own.
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.