Unfair Dismissal Cases

There are many examples of unfair dismissal cases, which vary depending on the reason for the dismissal. If you have been continuously employed for at least 2 years, then If your employer dismisses you, they must have a fair reason to do so (if you have less than 2 years service then please see – Unfair Dismissal Under 2 years).Unfair Dismissal Cases

If you have the said minimum service of 2 years and your employer does not have a fair reason to dismiss you, then you may be able to claim unfair dismissal. Even if they have a fair reason, they must also follow the correct dismissal process. We look at some examples of unfair dismissal cases and what an employment tribunal looks for in deciding whether the dismissal is fair. If you have been unfairly dismissed, you will also want to read – Unfair Dismissal Compensation Award.

What is unfair dismissal?

To avoid unfair dismissal, an employer must have a fair reason for dismissing an employee. Fair reasons include:

  • Conduct
  • Capability, which can be based on performance or ill health
  • Redundancy
  • It would be illegal to continue the employment, for example, a driver has lost their driving licence
  • Some other substantial reason

Unfair dismissal cases are not always straightforward.  Even if an employer has a fair reason for dismissal, they may fail to follow the correct process, meaning an employee can successfully challenge the decision.

Unfair dismissal for misconduct

Employees may be dismissed for misconduct if their behaviour is inappropriate or breaches the employer’s policies, standards or rules.

The dismissal must genuinely relate to the misconduct and the dismissal must be a reasonable response.

One of the leading unfair dismissal cases is British Home Stores Ltd v Burchell [1987] ICR 303. It sets out what an employment tribunal will look at when deciding whether there has been unfair dismissal in a case of misconduct and the questions that need to be answered.

Miss Burchell was a shop worker who sold a pair of sunglasses to a colleague but charged for a cheaper pair. British Home Stores (BHS) held that this was dishonesty and dismissed Miss Burchell.

The employment appeal tribunal asked the following questions:

  • Did the employer believe the employee as guilty of misconduct?
  • If yes, were there reasonable grounds on which to hold that belief?
  • When that belief was formed, had there been a reasonable investigation?
  • Considering all the circumstances, would a reasonable employer have dismissed the employee? These circumstances include:
    • Was the employee given warnings?
    • Was the employee treated differently to other employees who had done the same thing?
    • How serious was the conduct?
    • Was the investigation fair and did it look at any mitigating circumstances?
    • How long was the employee’s service?
    • Was the employee likely to repeat the conduct?
    • What the employer’s policies said about the conduct in question

The employment appeal tribunal found that BHS’s belief in Miss Burchell’s dishonesty was not unreasonable, they had carried out a reasonable investigation and her dismissal was reasonable. This meant that she was not unfairly dismissed.

If someone is dismissed for misconduct, then they will usually only receive their notice pay. However, if they are dismissed for gross misconduct, then they are usually dismissed without notice (this is commonly known as a summary dismissal).

Unfair dismissal for poor performance

Employers should have a procedure for dealing with poor performance. This includes:

  • Clearly communicating expectations
  • Assessing skills and performance
  • Advising employees of any improvements that are needed
  • Providing reasonable support, such as training and mentoring
  • Issuing warnings where appropriate, usually at least one verbal, one written and one final

They should follow their own policies and handbook in dealing with poor performance and the review process.

In the case of Piaszczynski v Leakers Ltd 1400843/2022, a baker was unfairly dismissed for poor performance. Mr Piaszczynski was a head baker at Leakers Bakery. His employer claimed that he had continued to produce bread with holes in the middle after being warned and that this was affecting their reputation and business.

The employee’s boss had left him several notes over the course of a year asking him to make sure there were no holes in the middle of the bread as customers did not like it and might go elsewhere.

The tribunal found that good industrial practices had not been followed in dealing with the problem.

  • Mr Piaszczynski had a poor grasp of English so did not fully understand the written complaints
  • His employer had not done enough to make him aware that he had been issued with warnings
  • He had not been given any advance notice of his dismissal
  • He had not been provided with specific performance targets
  • There had been no attempt to help him by providing training
  • He was not given any right of appeal

The employment tribunal found that while the reason for dismissal was a fair one as the employer genuinely believed that the employee was underperforming, the dismissal was unfair because the correct procedure had not been followed.

It is common for employers to use performance improvement plans (or PIPs) to manage poor performance, although generally, PIPs are either used to improve performance or to push someone out of the business, see more information – Performance Improvement Plan UK.

Ill health

If an employee is unable to work because of ill health, it may be reasonable for their employer to dismiss them. However, dismissal must be a reasonable response, and the employer must follow the correct procedure. This may include considering whether any adjustments can be made to help the employee return to work (partially if the ill health amounts to a disability).

Dismissal for ill health should be a last resort. If you dismiss someone because of a disability, this is likely to be disability discrimination, particularly if there was no attempt to make reasonable adjustments to accommodate them.

In the case of BS v Dundee City Council looked at when an employee can be fairly dismissed on the basis of sickness absence.

BS had worked for Dundee City Council for 35 years before being dismissed on grounds of capability due to ill health, which included depression and anxiety. He received counselling and occupational health assessments, with the Council meeting regularly with him to review the situation.

It was eventually suggested to him that he return to work on the date that his most recent GP certificate was set to expire and he was told that he risked dismissal if he did not return. Although an occupational health worker reported that he should be able to return to work within one to three months, he failed to returned on the date requested, saying he was unwell and not ready to return.

He was dismissed and his appeal against dismissal was rejected. The case was heard by an employment tribunal, employment appeal tribunal and finally, the Court of Session, which found that the Council had followed an unfair process in dismissing BS.

It should not have made assumptions based on the employee’s understanding of his condition instead of a professional medical opinion and should have had all of the relevant facts to hand before making a decision.

The employee’s long service should also have been taken into account.

The Court of Session said the following should be considered:

  • Should the employer be expected to keep waiting for an employee to return?
  • Was the employee consulted and their views taken into account along with medical opinion?
  • Were reasonable steps taken to obtain a prognosis?

The length of service could indicate that an employee is likely to return to work when they can.

Long Term Sickness Absence

If someone has been on long term sickness absence, a fair process before being able to dismiss fairly will usually have to include:

  • Consultation with the employee.
  • A thorough medical investigation.
  • Consideration of other options, such as alternative employment within the business).

Persistent Short Term Absence

If someone has been off frequently for minor unconnected issues, a fair process before being able to dismiss fairly will usually have to include:

  • A fair review of the attendance record and the reasons for the absence.
  • The employee be given an opportunity to make representations.
  • The use of warnings if attendance does not improve.

Redundancy

When making redundancies, there must be a genuine redundancy situation and employers must follow a fair consultation and selection process. The basis of a fair redudnacy dismsisal often must include:

  • A genuine redundancy situation (for example, as the diminishing of work of a particular kind).
  • A warning that your position is at risk of redundancy.
  • Meaningful consultation (any decision to dismiss before consultation has taken place is likely to render the dismissal unfair).
  • Consideration of alternatives (such as alternative employment within the business).

The selection process must be fair and objective and the employer should give employees the information they need to check that this is the case. The employer also has a duty to consider any potential alternatives to redundancy.

In the case of Thomas v BNP Paribas Estate Advisory and Property Management UK Ltd [2016] UKEAT 0134_16_0310, the employee, Mr Thomas, who had worked for the employer, BNP Paribas for over forty years, was told that he was at risk of redundancy. He was put in a selection pool of one and placed on paid leave.

At a formal consultation meeting, he suggested an alternative role but was told it had already been filled. At a final consultation meeting, he was told that there was no alternative to redundancy. He appealed against this decision and his appeal was rejected.

He claimed both unfair dismissal and age discrimination, saying that the consultation process was a sham and he was dismissed because of his age, which was 59.

The employment appeal tribunal criticised the consultation process, saying it was perfunctory and insensitive. One letter to Mr Thomas had used an incorrect name, despite his decades of employment. There was a lack of fairness in the consultation and placing him on paid leave at the start of the redundancy process suggested that the decision to dismiss him had already been taken.

The redundancy process should be managed properly and employers should also consider whether paid leave is really necessary, as it can be difficult to bring an employee back from paid leave.

Contact our unfair dismissal lawyers

There are many examples of unfair dismissal cases, with the above being a few common examples. Please remember the requirement to have been employed for at least 2 years to be eligible to claim unfair dismissal.

If you believe that you have been unfairly dismissed, contact us today. We provide expert representation in unfair dismissal cases and have the experience to secure the outcome you need. We will go through what has happened and discuss the options open to you. If you have been unfairly dismissed, we can represent you in dealing with your employer.

We may be able to negotiate a settlement agreement giving you a lump sum payment without the need to go to an employment tribunal. Where necessary, we provide robust tribunal representation.

To speak to one of our expert unfair dismissal lawyers, call our team on 0207 118 9218 or complete a Free Online Enquiry and we will contact you.

Disclaimer

This blog is for information purposes only. Nothing should be relied upon as a substitute for legal advice and nothing written should be construed as legal advice or perceived as creating a lawyer-client relationship.

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