Introductory guidance on dismissal in the UK, focusing on unfair dismissal and with advice on following a fair dismissal procedure
Here we list a selection of key cases on dismissal, providing a summary of the decision and implications for employers.
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COVID-19 case law
Rendina v Royston Veterinary Centre | ET | September 2021
Issue: Differing approaches to COVID-19 health and safety concerns - fairness of dismissal
An assistant vet had been employed at a veterinary centre for a little over two months from January to March 2020 at the start of the pandemic. She raised numerous concerns about the practice’s approach to safety measures to protect against the spread of COVID-19 including whether routine treatment should be continued. She had family in Italy and the pandemic had already had a very serious impact by March 2020. Under a week after meeting to discuss these matters, she was dismissed. The dismissal letter mentioned discord with the practice director but said COVID-19 issues were not the reason for her dismissal.
In the claim for unfair dismissal, the Employment Tribunal applied S.100 of the Employment Rights Act 1996, protecting employees who are dismissed for raising health and safety concerns. The potential spread of COVID-19 in a workplace is a health and safety concern, and the veterinary practice did not have a health and safety committee or representative and its approach was potentially harmful to health and safety. She was found to be automatically unfairly dismissed as she was dismissed for raising COVID-19 issues and not because of her performance.
Different approaches to COVID-19 risks may continue to arise as restrictions are lifted, for example, in relation to investment in ventilation or the risks of remaining unvaccinated. This may lead to more S.100 Employment Rights Act 1996 claims over workplace health and safety concerns.
Quelch v Courtiers Support Services Ltd | ET | 21 September 2021
Issue: Unfair dismissal - refusal to attend workplace due to COVID-19
A compliance analyst for a financial services, personal wealth and fund management company was dismissed for gross misconduct after refusing to return to work. He had successfully worked from home during the first lockdown but was asked to return in July 2020 even though government guidance was to work from home if people could. The analyst had anxiety and refused to return due to concerns about his clinically vulnerable partner who had asthma and a heart condition. The employee was concerned that COVID-19 safety measures were not being properly implemented and his line manager supported his request to continue working remotely. Despite this, the CEO insisted he return to the office.
Eventually, after numerous emails, as he hadn’t returned to the office, his access to work systems was withdrawn and he was placed on unpaid leave even though he remained willing to work from home. Following disciplinary proceedings, he was dismissed for failing to follow a reasonable instruction (to return to work) and failing to comply with the terms of his contract regarding the place of work.
An employment tribunal found there was no potentially fair reason for dismissal and the dismissal, and the procedures followed, were outside the range of reasonable responses. The employee’s claims for ordinary unfair dismissal, automatically unfair dismissal (based on refusal to return to work due to serious and imminent danger), and detrimental treatment on health and safety grounds, all succeeded, and he received a 20% uplift in his award for the employer’s non-compliance with the ACAS Code of Practice on grievance and disciplinary procedures. A wrongful dismissal claim for unpaid notice and unlawful deduction from wages for the period of unpaid leave brought the total compensation to over £14,500 including £2,000 for injury to feelings.
The tribunal found it unreasonable to insist on a return to the office when the government guidance was still to work from home if possible, and this employee had worked successfully from home. The employer had also moved straight to a disciplinary hearing without investigating the reasonableness of the claimant’s refusal of its instruction and did not clarify the extent of the claimant’s anxiety or seek confirmation he was prepared to return once the guidance changed. The disciplinary and grievance processes were also dealt with by an HR person who had been closely associated with the COVID-19 risk assessments challenged in the grievance and was, therefore, not impartial.
Allette v Scarsdale Grange Nursing Home Ltd | ET | January 2022
Issue: Refusal to be vaccinated - fairness of dismissal
An assistant at a residential care home was dismissed in February 2021 for refusing to be vaccinated and claimed wrongful and unfair dismissal. The home (where she had worked for 14 years) had a vaccination programme in December 2020 that was postponed to January 2021 because of a Covid-19 outbreak there. The claimant, 32 other staff, and 22 residents, were ill within 10 days, and numerous residents died.
The day before the postponed vaccinations in January 2021 (but before Covid-19 vaccines became mandatory for care home staff) the claimant refused to be vaccinated as she did not trust the vaccine. She said it had been rushed through without proper testing; that she had read stories on the internet about a government conspiracy; and that no-one could guarantee its safety. There was no mention of her religious beliefs or reservations against pharmaceutical medicines during this initial conversation but, at a subsequent disciplinary hearing, she gave her Rastafarian beliefs as the reason for her vaccine refusal.
The home’s director, chairing the disciplinary meeting, summarily dismissed her for gross misconduct for failure to follow a reasonable management instruction. Among the reasons given for this decision were:
- it presented a risk to other residents, visitors and staff
- the employer’s liability insurance did not cover Covid-19 related risks
- it was not possible to make an exception for one member of staff
- the claimant was being dishonest by citing religious reasons for her refusal.
The employment tribunal held the dismissal was fair because:
- this was a failure to comply with a reasonable management instruction, justifying a dismissal on the grounds of conduct
- this was not breach of Article 8 of the European Convention on Human Rights (the right to respect for private life)
- the care home’s health and safety and insurance cover concerns were legitimate
- the employee had no medical basis for refusing vaccination
- the employer had acted within the range of reasonable responses, based on the knowledge about vaccines and the progress of the pandemic at that time.
The case is a good indication for employers who wish to introduce a mandatory vaccination programme although this is only a tribunal decision and so not binding on other employment tribunals. In this case, the employer relied on medical evidence showing it was possible to contract and transmit the virus more than once, so the claimant’s antibodies from a recent infection still meant there was a tangible benefit to having the vaccine. The care home followed dismissal processes and procedures, investigated well, and kept a paper trail of minutes notes of key meetings, including a note that the director did not believe the claimant’s refusal was linked to her religious beliefs, as this was only raised later. While the employer had referred to government guidance, the tribunal found it could have done more to inform the employee about the safety and efficacy of the vaccine.
It is important to note that each case will be considered on its own facts and that disciplining or dismissing an employee for failing to be vaccinated is not without risk, especially for employers outside of the health and social care sectors.
Accattatis v Fortuna Group (London) Ltd | ET | 25 May 2021
Issue: COVID-19 - automatically unfair dismissal due to workplace danger
A sales and marketing employee’s dismissal was found not to be automatically unfair following a dispute with the employer about furlough, working from home and workplace danger.
After the first lockdown in March 2020, the employer stayed open but said employees wanting to avoid the workplace could take paid or unpaid leave. The employee had a background of ongoing disputes about his hours, pay, working environment and conduct in the office. His request to work from home was refused, because of the cost of arranging remote access to the office software and the need for physical presence for deliveries. He travelled to work by bus, then said he had COVID-19 symptoms and had to isolate. Afterwards he requested furlough, but this was refused on the basis that there was work for him to do. He felt uncomfortable attending the office during lockdown, said he still had COVID symptoms and continued to obtain isolation notes.
The employer dismissed him by email, citing failure to comply with company policy. This dismissal was 17 days before the 2 years’ service for unfair dismissal claims. He brought an automatically unfair dismissal claim, not needing any period of qualifying service, based on s.100 of the Employment Rights Act 1996 (ERA), saying he left the workplace due to a ‘reasonable belief in a serious and imminent danger’.
The employer successfully defended the claim. The tribunal accepted that the employee reasonably believed the pandemic presented serious and imminent danger. However, the steps he proposed were inappropriate to shield himself from the danger. The employer would have let him stay at home on paid or unpaid leave, but the employee wanted to protect his personal financial position. The employer admitted dismissing him to avoid two years’ service and the workplace danger issues were, therefore, not the principal reason for his dismissal.
Employees will struggle to prove ‘workplace danger’ claims if their primary motive for requesting furlough or home working is not health and safety but financial motives. Employers can decide whether to furlough employees. Employers should also remember that tribunals will add on the statutory minimum notice period the employee should have received to the termination date to see if an employee has the required two years' service, so an employee apparently having less than two years’ service will not always avoid an unfair dismissal claim.
(As an aside, the employer in this case sold PPE, including face masks and gloves to the NHS, and a letter from the former Health Secretary, Matt Hancock, commending the organisation for staying open, featured in the case).
Montanaro v Lansafe Ltd | ET | 1 April 2021
Issue: COVID-19 - automatically unfair dismissal arising from avoiding workplace danger
An Employment Tribunal held that a UK-based IT professional, who had remained in Italy at the start of the pandemic, was automatically unfairly dismissed when his employer dismissed him for unauthorised absence.
An IT professional, employed from mid-February 2020, took annual leave to go on holiday to Italy. The evening before he was due to return to the UK, Italy went into lockdown. Italian guidance said to stay at home, though travel for work purposes was permitted. The UK government required 14 days’ isolation on return from Italy. The employee explained this to his employer and was told to wait for further instructions, but he continued to work remotely. Two days later the employer sent a letter to his address in London although the company knew that he was still in Italy. The letter dismissed him for taking unauthorised leave and failing to follow company procedures. The employee learned of his dismissal on 1 April 2020 when he received his final payslip and P45.
He claimed automatically unfair dismissal based on s.100 of the Employment Rights Act 1996 (ERA), saying he left the workplace due to a ‘reasonable belief in a serious and imminent danger’.
The tribunal accepted that the employee reasonably believed the pandemic presented serious and imminent danger. He had taken appropriate steps to protect himself from such danger, had communicated appropriately with the employer and continued to work. He was automatically unfairly dismissed.
Ms A Khatun v Winn Solicitors Ltd | ET | 22 March 2021
Issue: Covid-19 – inadequate dismissal procedure
A solicitor at a law firm specialising in road traffic accident litigation was asked to agree to a contractual variation during the first national Covid-19 lockdown. Overall, there was less road accident litigation as there were fewer vehicles were on the road. The employer furloughed half the staff on 80% of their wages; and the other half were retained to do the work of their furloughed colleagues. The retained staff were asked to agree a contractual variation reducing their pay by 20%, subject to business needs, despite the fact they would be absorbing their colleagues’ work too.
The solicitor was one of the ones chosen to work and emailed the HR director, refusing to agree to the contractual variation. She said she would be continuing the same job with double work and so didn’t agree to a pay reduction. One of the employer’s directors, in liaison with HR, said if she did not agree, her employment would be terminated on Friday. The claimant subsequently brought a claim for unfair dismissal.
The tribunal decided that the dismissal was unfair. Employers must show a potentially fair reason for dismissal, and a fair procedure. The solicitor’s failure to agree to the contractual variation was “some other substantial reason” but the procedure was inadequate as it was decided in advance that failure to agree to the contractual variation would lead to dismissal. The employer had acted unreasonably in treating the refusal as a sufficient reason for dismissal. It had not reasonably explored alternatives to dismissal, and no meaningful consultation had taken place.
This case applies long established legal principles to a Covid-19 situation. Employers seeking to vary terms and conditions should secure agreement. If the variation is not agreed, the employer should consult and consider alternatives to dismissal. A lack of proper consultation will render a dismissal unfair even in exceptional Covid-19 situations.
There is a potential route of dismissing employees and re-engaging them to enable changes to employees’ contractual terms. In 2020 the Government asked Acas to gather evidence and produce a report on the use of this fire and re-hire route, but the results have not yet been made public. Employers may see legislative changes being made to the methods and ability to vary terms and conditions.
Employers must show fair and reasonable procedures throughout the dismissal process, even during the pandemic and lockdowns.
Rodgers v Leeds Laser Cutting Ltd | EAT |May 2022
 EAT 69
Issue: Automatically unfair dismissal due to workplace danger
Covid-19 is not treated as automatically creating a serious and imminent danger, otherwise all employees could have stayed away from the workplace as a result of the pandemic, but it can, in principle, give rise to a serious and imminent danger to health and safety. This case demonstrates the importance of employers of taking Covid-19 health and safety measures.
The employee in the case was held not to be unfairly dismissed after he refused to attend the workplace due to Covid-19 concerns. He worked in a large warehouse with a colleague who had Covid-19 symptoms. He told his manager he would be staying away from work until lockdown eased as his children had sickle-cell anaemia and he was concerned about the risks that Covid-19 posed to them. A month later, he was dismissed and claimed automatically unfair dismissal (which does not require the two years’ service normally needed for unfair dismissal claims) based on s.100 of the Employment Rights Act 1996 (a reasonable belief in a serious and imminent danger in a workplace).
The EAT agreed with the employment tribunal that the claimant’s dismissal for not returning to work due to Coronavirus concerns was not automatically unfair. The employer successfully defended the claim because the employee was unable to demonstrate there had been workplace danger and he had not raised his concerns before leaving.
The EAT agreed that the claimant’s decision to stay off work was not directly linked to his working conditions; rather, it was due to his concerns about the virus generally. He had genuine concerns about the safety of his children, but this did not mean that he necessarily had a belief in a serious and imminent danger that prevented him from returning to work. The workplace was large, few people worked in it, the employee could generally maintain social distance, he had not asked for a mask and he had worked in a pub during the lockdown. He also drove a friend to hospital the day after he refused to attend the workplace.
This case failed on its facts because, in this instance, Covid-19 did not constitute a danger in the workplace. Whether there is a serious and imminent danger depends on precautions taken by employers. Here the employer had carried out risk assessments, and had followed the government guidance on social distancing, hand washing and masks.
Kubilius v Kent Foods Ltd | ET | 10 February 2021
Issue: COVID-19 - unfair dismissal for failing to wear a face mask
A lorry driver was fairly dismissed for his refusal to wear a face mask when asked to by a client organisation.
At that time, government guidance said masks were optional. The driver’s collections involved travel to a major client, Tate and Lyle, which required mandatory face masks on site. The driver refused to wear a face mask during a delivery, despite repeated requests by Tate and Lyle employees. The incident was reported to his employer and Tate and Lyle banned the driver from its site.
The employer’s handbook said staff should follow client instructions regarding PPE and treat clients courteously. The employer held an investigation and disciplinary hearing. The face mask refusal was found to be deliberate non-compliance with reasonable health and safety instructions, aggravated by lack of remorse. He was summarily dismissed for gross misconduct and later claimed unfair dismissal.
The tribunal held that the driver’s dismissal was fair. The employer had investigated and acted reasonably in treating the misconduct as a sufficient reason for dismissal. Another employer might have issued a warning instead, but dismissal fell within the range of reasonable responses.
The outcome of each case depends on its own facts. Here the driver insisted he had done nothing wrong and was banned from a major client’s site, which would cause future problems for his employer. Refusal to wear a mask can be a fair reason to dismiss someone but might not be fair in a different situation.
Employers should make all policies and procedures about managing COVID-19 clear, which may include investigating why an employee refuses to wear a mask, including occupational health or medical advice. Dismissing an employee who is medically exempt could trigger unfair dismissal and disability discrimination claims.
Regnante v Essex Cares Ltd | ET |April 2021
Issue: constructive dismissal – refusal of request for home working
An administrator for a large company providing home care and equipment to people on behalf of local authorities was based in an office, about five minutes’ walk from her home in Worthing. Her husband was clinically extremely vulnerable, having undergone cancer treatment, and was at high risk of serious illness if he caught Covid-19. At the start of the pandemic in March 2020, Regnante was allowed to work from home, but her managers required her to return to the office in order to be consistent with their requirements of other staff. The majority of her tasks could be carried out from home and the government advice at the time was to work from home unless the role required attendance as a matter of necessity.
She completed a risk assessment questionnaire and her manager encouraged her to amend some of her answers to facilitate working in the office. Suggestions about taking 12 weeks’ unpaid leave and staying in a hotel when working in the office were also made. Since she was unable to obtain agreement to working from home, or any satisfactory alternative, Regnante reluctantly resigned in order to protect her husband from any risks that her attending the office would entail. She then claimed constructive automatically unfair dismissal on health and safety or whistleblowing grounds, that she suffered detriments at work and that her notice pay was incorrect. Additional claims for discrimination and harassment were withdrawn.
She won her constructive unfair dismissal claim of based on breaches of the implied term of trust and confidence. Her claim of detriment at work on health and safety grounds was also upheld but not the whistleblowing element.
Although the employer had proposed some measures, given the danger to the claimant’s husband who was shielding, requiring her to attend work or take unpaid leave at that time was a breach of the implied term by the employer. The employer had been unsympathetic and hostile and requiring her to change her risk assessment responses also amounted to a breach of trust and confidence.
McNabb v Denholm UK Logistics Ltd | ET |February 2022
Issue: dismissal for breaching self-isolation rules
A warehouse team leader worked for a storage, distribution and logistics company based in Liverpool docks. In mid-August 2020, he flew to Dubai on a family holiday. At the time there were well publicised travel restrictions, and vaccinations were not yet available. Dubai was not on the UK government’s list of ‘safe’ countries and therefore the claimant should have self-isolated for 14 days immediately upon his return to the UK. Instead he went back to work following a negative Covid-19 test on 1 September, mixing with other employees. On 3 September he was told to go home due to need to self-isolate. He later tested positive.
A disciplinary process resulted in a summary dismissal for breaching government guidance and putting his fellow employees at risk by returning rather than self-isolating. After his dismissal he claimed unfair and wrongful dismissal (and brought a holiday pay claim which was later withdrawn). The claimant alleged managers should have told him to self-isolate and that he had researched the internet and made a mistake as he believed he did not need to quarantine. He cited learning difficulties, illiteracy, and dyslexia in defence of his actions but the tribunal found this was self-diagnosed and his evidence could not be relied upon.
He lost his claim for both unfair and wrongful dismissal. The tribunal held that the employer’s decision to dismiss for gross misconduct for breach of its own policies and the implied duty to obey lawful and reasonable instructions was within the range of reasonable responses. The employee was in repudiatory breach of contract by breaching Covid-19 rules; his actions could have led to serious illness and loss of life. It was his personal responsibility, and not that of the company’s managers, to comply with government guidance and the employer’s ‘Coronavirus FAQ & Guidance’ document that warned employees, ‘If you appear on company premises during the period when you should be self-isolating, you are putting your fellow employees at risk and, in the absence of extenuating circumstances, will be summarily dismissed for gross misconduct due to breaching health and safety protocols.’ If he was unsure about the need for self-isolation, he could have asked at the airport on his return, telephoned a government helpline or asked the employer’s HR department. The media had extensively covered the measures to be taken including self-isolating when returning from a holiday abroad. Many people cancelled holidays or self-isolated at this time.
Taylor v Borough Care Ltd | ET |October 2021
Issue: dismissal for breach of lockdown guidelines by attending a party
A care home manager attended a colleague’s birthday party in November 2020 at her colleague’s home, with six more junior members of staff, whom she managed. A video shared on social media showed the staff dancing and in close contact with each other, with no social distancing or PPE, in breach of Covid-19 lockdown guidelines in place at the time. She had breached infection control rules by attending the party and not arranging for those present to undertake Covid-19 testing on their return to work.
The employer began disciplinary proceedings and decided that, given her position of authority and responsibility for care home residents, she should be dismissed. The reasons given were that she had:
• seriously breached the company’s trust and confidence in her by breaking government Covid-19 lockdown guidelines and attending a house party without PPE
• potentially brought the company into disrepute
• failed to stop the party and potentially endorsed others’ attendance by her own presence.
She lost a claim for unfair dismissal. The employer had acted reasonably in dismissing the manager given that her actions put vulnerable elderly people at risk. She had breached government guidelines and the employer’s infection control practices without good reason. The claimant should have set an example to more junior staff, tried to stop the party and reported it to the respondent. The employer had taken the manager’s clean disciplinary record and length of service into account, but the seriousness of her conduct and risk to elderly vulnerable people outweighed this. The decision to dismiss for the misconduct was within the range of reasonable responses and the investigation was reasonable, proportionate, and procedurally fair.
Gwynedd Council v Barratt | Court of Appeal | 2 September 2021
 EWCA Civ 1322 CA
Issue: no right of appeal in a redundancy procedure
PE teachers at a community secondary school were told that their contracts of employment would be terminated, but they were invited to apply to work at a new school. Most teachers were successful, but the two claimants in this case were made redundant. They claimed unfair selection for a redundancy dismissal.
The case eventually reached the Court of Appeal which decided that the absence of an appeal in a redundancy procedure does not of itself make a redundancy dismissal unfair, but that it is one of the many factors to be considered in determining fairness.
Implications for employers
Redundancy processes should generally involve consultation, and a right of appeal. Employers should also remember that in some cases there will be a contractual right of appeal anyway.
The safest course of action for all employers is to offer an appeal as part of the disciplinary and dismissal procedure. However, failing to offer a right of appeal does not on its own make a dismissal unfair. There are many factors to be considered in deciding fairness. For example, employers must usually give employees at risk of redundancy priority over external candidates when seeking to fill available vacancies, provided the vacancies constitute suitable alternative employment. Employers must consider redeployment in their organisation, which includes associated employers, and there were vacancies in other schools within the area of the same local education authority in this case.
If employees are asked to apply for their old roles in a competitive process, this may be an indicator of an unfair dismissal. Pooling employees and applying selection criteria is better than a competitive application process in redundancy situations. If roles are changed, a competitive or interview selection process may be appropriate.
Lancaster and Duke v Wileman | EAT | July 2018
Issue: Unfair dismissal - notice and termination date
A recruitment consultancy manager was summarily dismissed for gross misconduct just two days before she had the two years’ continuous service needed to bring a claim for unfair dismissal. The employer did not follow a disciplinary process and the employee was not given any right of appeal.
The employee claimed unfair dismissal. The Employment Tribunal had to decide if she had the two years continuity of service needed to bring the claim. Employees can normally add on the statutory minimum period of notice to the effective date of termination (EDT) if the employer has not given them their proper period of notice.
The Tribunal said that as she should have had one week’s statutory notice, the unfair dismissal claim could proceed, and that the employer had acted unreasonably. The employer had failed to both investigate the alleged misconduct and follow a proper procedure before the dismissal.
The EAT said that when an employee is dismissed without notice, the termination date is not always extended by the statutory notice period. If the employee has committed gross misconduct, then the provisions for extending the EDT do not apply. However, the ET had not decided if the employee had committed gross misconduct, so the case had return to the Tribunal to decide if she had.
Implications for employers
Employers must be very careful to follow all proper procedures and to dismiss unsatisfactory employees with proper notice. It is normally safest to do this well in advance of their accrual of two years’ continuity of employment.
Employers should normally pay employees their normal pay and benefits, set out in the written statement or contract of employment, for the entirety of the notice period. In certain circumstances, payment in lieu of notice may be given if the contract of employment provides for this.
There are two types of notice period: statutory and contractual. Contractual notice is an agreed notice period. In the absence of such an agreement, the law implies a reasonable notice period, which must not be shorter than the statutory minimum period. The minimum is one week's notice if the employee has been employed by the employer continuously for between one month but for less than two years.
Employees with two years' continuous employment or more are entitled to one week's notice for each year, up to a maximum of 12 weeks' notice.
The Employment Rights Act 1996 enables employees to extend their EDT by adding on the statutory minimum period of notice, if the employer does not give a proper period of notice.
This is a rare decision which confirms that the extending the termination date by adding on the notice does not apply in cases of gross misconduct.
If employers are considering a justified dismissal without notice, they should still terminate the contract well in advance of one week before the two years’ continuous service accrues. This helps avoid employees being able to bring unfair dismissal claims.
Patel v Folkestone Nursing Home | Court of Appeal | July 2018
 EWCA Civ 1689
Issue: Unfair dismissal – successful disciplinary appeal revives employment
FactsA healthcare assistant at a nursing home was dismissed for gross misconduct as a result of sleeping on duty and falsifying residents’ records.
He appealed the decision to dismiss him and his appeal was upheld because he had been on an unpaid break when found asleep. The letter after the appeal stated that the dismissal was revoked and that he could return to work. The allegation about the falsified records was not addressed in this letter and the assistant, who still felt aggrieved, refused to return to work. He left and presented claims of wrongful and constructive unfair dismissal.
The key issue was whether the effect of the appeal was that the assistant remained dismissed, as the disciplinary letter ignoring the second allegation left his position unclear.
The CA agreed with the employer that where an appeal is lodged and is successful, the effect is that the employment relationship is treated as being in existence throughout. A successful appeal effectively automatically revives employment.
The CA was critical of how the employer dealt with the appeal, as the care home had failed to resolve the more serious of the allegations (falsifying residents’ records) and did not withdraw a complaint it had made to the DBS about him. The employer’s failings were probably in breach of the implied duty of trust and confidence.
Implications for employers
If employers uphold an internal appeal against a decision to dismiss, the dismissal will usually be treated as never having happened.
Employees must always be treated fairly throughout any appeal process:
- Appeal processes must follow both any internal disciplinary policy and the Acas Code of Practice on Disciplinary and Grievance Procedures.
- Every point of an appeal must be addressed and comprehensively responded to in the appeal outcome letter.
If an appeal is ongoing, employers should not communicate an employee’s departure in case the decision to dismiss is subsequently overturned.
Where an employer fails to deal with some of the allegations in a disciplinary process, this failure may be a breach of the implied term of trust and confidence.
Employers that fail to follow a fair procedure, or do not address all relevant issues at the appeal stage, may enable employees to claim that they have been constructively unfairly dismissed.
If a dismissal decision is reversed following the appeal, employers should:
- pay the employee for the intervening period between the dismissal and the appeal decision
- take the intervening period into account for the purposes of holiday accrual
- preserve continuity of employment and ensure the employee is integrated back into the business.
Part of this case may have been averted if the employer had acted promptly to rectify the defects when the employee failed to return to work after the flawed disciplinary process and appeal.
Adeshina v St George’s University Hospital NHS Foundation Trust | Employment Appeal Tribunal | 1 May 2015
Issue: Unfair dismissal
A prison service pharmacist faced allegations of unprofessional and inappropriate misconduct. Following a procedurally defective disciplinary process she was dismissed. One of the procedural failings was that the manager hearing the appeal partially relied on matters which had not been put to the claimant. The claimant appealed against the dismissal.
According to the Acas Code of practice on disciplinary and grievance procedures, appeals should be dealt with impartially by someone not previously involved in the case, and the non-statutory Acas guidance recommends that the person conducting the appeal should be more senior than the initial disciplinary manager. Here the appeal process was also open to criticism in that:
- The manager hearing the appeal had been involved in part of the original case against the pharmacist.
- That manager was also a mentor to one of the victims of the alleged misconduct.
- The manager was also subordinate to the manager who had conducted the first disciplinary hearing.
The claimant’s dismissal was confirmed and she brought a number of claims (including unfair dismissal). The key question was whether the flawed initial disciplinary process had been corrected by the employer on appeal.
The Employment Appeal Tribunal found that the dismissal was not unfair; the flaws at the first stage of the disciplinary process had been remedied. The mere fact of a manager having had prior dealings with an employee, without something extra which suggested bias, would not make the dismissal unfair.
Implications for employers
- Employers must always act fairly and reasonably in any disciplinary and grievance procedures.
- Failure to follow a fair procedure will usually make any subsequent dismissal unfair.
- The compensation awarded to an employee can be reduced in some circumstances to reflect the fact the dismissal would have happened anyway, if matters had been handled properly.
- The Acas Code of practice on disciplinary and grievance procedures sets out the basic requirements of fairness and should always be followed. Supplemental Acas guidance is also advisable.
- Failure to follow the Code itself can increase any award made against employers by up to 25%.
- Some procedural defects in an initial hearing may be remedied on appeal.
- If an employer wishes to remedy any procedural defects or omissions, it is sensible to conduct appeals as re-hearings where possible.
- Many small employers may have problems deciding who should hear an appeal. The only senior managers available may be involved in the events giving rise to the disciplinary matter in the first place.
- It is sometimes unworkable, especially in smaller organisations, for those senior managers to avoid the disciplinary hearings, although appeals should be dealt with impartially by another manager where possible.
- Employers should plan who should hear a disciplinary matter and any subsequent appeal from the very outset. The safest course may be to involve an external person or semi retired manager/consultant in the appeal if possible.
JJ Food Service v Zulhayir | Court of Appeal | 16 Oct 2014
 EWCA Civ 1226
Issue: Unfair dismissal – Termination of contract while absent
A delivery driver was on long-term sickness absence after a serious accident at work that resulted in him suffering serious spinal injuries. The employer wrote to him in June 2006, stating that if he did not contact them within a week the employer would assume the driver had terminated his contract of employment.
The employee had, in fact, moved house and the letter was returned unopened. The employer treated the employee as dismissed. Meanwhile a personal injury claim was being pursued. When the driver saw a copy of the letter some three years later he brought a claim for unfair dismissal, disability discrimination, breach of contract (including notice pay and unpaid holiday pay).
The employer argued that there was an implied unilateral termination by the employee. However the Employment Appeal Tribunal held that the employee was not ‘self-dismissed’ by failing to reply to the letter which stated that he would be taken to have resigned unless he contacted the employer. The employer should have attempted to contact the employee via his solicitors when the letter was returned. The contract therefore continued until 2009 and the claims for unfair dismissal and breach of contract were in time, as were the claims for disability discrimination and holiday pay claims which were continuing acts in any event.
Implications for employers
- Employment contracts must be clearly terminated.
- There must be actual communication with the employee concerning termination.
- Employers may consider hand delivery of relevant communications, or if electronic means are used, at the very least read receipts.
- Employers must not rely on an employee taking certain actions, failing which they will be taken as having resigned.
- Silence will not be effective in terminating a contract of employment.
- An unterminated contract can have very undesirable consequences for the employer. Employees may continue to be entitled to pay, holiday pay or other benefits.
- Employers must be clear and unambiguous in their communication with employees at all times.
- If handled differently the employer may have been able to communicate to the employee that the contract had been frustrated in any event.
Fuller v United Healthcare Services | Employment Appeal Tribunal | 14 Sep 2014
Issue: Jurisdiction (legal test for whether foreign nationals can bring unfair dismissal and whistleblowing claims)
The claimant was a US employee of a US company who was paid in US dollars. He worked about half his time in the UK (managing the UK and Abu Dhabi businesses) and the rest in the US. He got a daily allowance for each day spent in the UK. Employment contracts should always expressly state which country’s legal system applies to the relationship, but this one did not. There was a clause in the contract saying that all disputes would be dealt with under the rules of the American Arbitration Association. The claimant was on numerous US boards and committees of the employer company. When in London he lived in rented accommodation paid for by the employer. He had furniture and home effects in Texas where he and his partner lived.
The employer introduced a permanent local Chief Executive Officer to head the UK business. While he was in the US the claimant’s UK secondment was ended, followed by a redundancy dismissal. He claimed unfair dismissal for whistleblowing, and sexual orientation discrimination under the Equality Act 2010. The issue was whether the UK employment tribunal had jurisdiction to consider his claims, or whether it was a matter for the relevant state in the US.
The Employment Appeal Tribunal decided the strongest connection of the employment contract was to the US. It held that neither UK or EU law was engaged and the employment relationship was an American relationship.
Implications for employers
- Employers should ensure that all contracts of employment have a ‘choice of law’ clause which clearly specifies which legal system applies to the contract.
- Employers should ensure that all contracts of employment have a choice of jurisdiction clause which clearly specifies which legal system has the power to deal with any disputes regarding the contract.
- The choice of law and jurisdiction often select the same place, but not in all cases.
- Employers must understand the implications of international postings and secondments.
- The Employment Rights Act 1996 and the Equality Act 2010 do not have a clear statement of their territorial scope. The courts and tribunals therefore are left decide which sorts of employees are entitled to protection and which are not.
- Where UK nationals are working in the EU, the UK courts should seek to allow employees to pursue any rights deriving from EU Directives, for example paid holiday and anti-discrimination rights.
- Generally an employee must show a sufficiently strong connection to the UK and that the connection is stronger than with any other jurisdiction.
- Different issues can arise with UK nationals working overseas and overseas nationals working in the UK.
- The House of Lords decision in Serco Ltd v Lawson (2006) states which employees are governed by UK employment law. This includes:
- those employees who ordinarily work in the UK
- ‘peripatetic employees’ who are based in the UK, but travel internationally on their employer’s behalf, and
- expatriates who can show a close connection to the UK.
- An employee’s base therefore depends on a number of factors such as home residence, pay and tax and application of contractual terms.
- Ordinarily, working in the UK at the time of dismissal is an indication that that the employee falls within UK employment law. However it is not absolutely definitive. In establishing the strongest connection, numerous factors, including the deliberate intention of both parties, the contractual terms and the workings of the contract in practice will be taken into account.
Lipinski v Ebbs Fleet Autospray Centre Ltd | Employment Appeal Tribunal | 6 June 2013
Issue: Unfair dismissal – a question over continuity of employment
An employee who worked for an autospray centre was dismissed in July 2008, but in December 2008 he was employed again. He was dismissed again in March 2010 and claimed unfair dismissal. The following month he joined another repair company for nearly four months. In July 2010 he settled his claim against the autospray centre and was re-employed in his old job. In May 2011 he was dismissed yet again due to a reduction in the type of work he did. The employment tribunal had to decide if he had sufficient continuity of employment to claim unfair dismissal again.
The Employment Appeal Tribunal decided that he could have the requisite continuous employment to bring an unfair dismissal claim, even though he had not been employed for continuous year before his dismissal. The Employment Protection (Continuity of Employment) Regulations 1996 specifically state that the period between a dismissal and the reinstatement or re-engagement can count towards the employee’s period of continuous employment. The employee was dismissed and presented a claim of unfair dismissal following the March 2010 dismissal. The matter had to go back to the employment tribunal to decide if he had been reinstated because he had brought the claim of unfair dismissal. The key fact is that working for another employer during the period before the reinstatement did not prevent continuity accruing.
Implications for employers
- An employee’s continuity of employment may not be broken during a several month gap between an employee’s dismissal and reinstatement in the original job.
- Even if an employee is dismissed by Employer A then works for Employer B and then returns to Employer A, the requisite continuity may be preserved.
- It seems curious to an employer that an employee can maintain continuous employment with them at the same time as working for another employer. However the rarely used law on reinstatement specifies that the dismissal is treated as never having occurred.
- Employers should be aware that if they agree to reinstate an employee, the employee will not go back to square one as far as the accrual of employment rights is concerned.
McCafferty v Royal Mail Group Ltd | Employment Appeal Tribunal | 12 June 2012
Issue: Unfair dismissal: Gross misconduct (unauthorised use of taxis)
A postman had travelled to work by getting a lift from passing Royal Mail vans. On one of his days off he was asked to come in, but refused to do so because of transport difficulties.
His line manager gave him the account and PIN of a taxi firm for him to get to work and he started to use the taxi firm, because the van routes changed and getting to work that way became less reliable for him. The taxi firm’s charges were reviewed and the postman was summoned to a formal meeting. He explained that he thought he was authorised to use the taxi service, and offered to repay the money. He was suspended and then dismissed. The disciplinary committee took account of his 19 years of service, but found that he had tried to conceal the extent to which he was using taxis. An employment tribunal, and subsequently the Employment Appeal Tribunal, found that he had been fairly dismissed for gross misconduct, in particular dishonesty and concealing the use of the taxi account.
Implications for employers
- When authorising employees to incur new expenses managers should do so in writing, making it clear precisely which expenses are allowed, on which occasions and for how long the expenses claims may continue.
- Employers should have a policy in place governing expenses which is kept under review so that employees know exactly what is expected of them.
- Employers should also regularly monitor and review expenses claims, warning employees of anything inappropriate and nipping excessive accrual of expenses in the bud at an early stage.
- The interesting aspect of this case was that the employment tribunal was comprised of the standard panel of three, namely two non-legal members and an employment judge. It was the non-legal lay members who decided that the dismissal was fair (based on their common sense knowledge of what any employee could be expected to know). They over-rode the opinion of the employment judge who wanted to find against the employer and rule that the dismissal was unfair.
- Following the Employment Tribunals Act 1996 (Tribunal Composition) Order 2012, such straightforward cases can now be dealt with by an employment judge on their own without the lay members. Paradoxically there may be more decisions against employers, with the panel number being reduced to a single judge, especially in straightforward conduct cases.
- In light of this case, solicitors representing employers should consider asking the tribunal for a full panel in unfair dismissal cases when they can.
Bailey v R and R Plant Hire (Peterborough) Ltd | Court of Appeal | 2 Apr 2012
 EWCA Civ 410
Issue: Unfair dismissal – retirement
An employee was about to turn 65. His employer informed him in advance that he would be retired on the (then default) retirement age of 65 and also that he had a right to request to continue working beyond this date. The main issue in the case was whether the notification was in accordance with the procedure set out in Schedule 6 to the Employment Equality (Age) Regulations 2006. The employee had put in a written request not to retire, but was eventually dismissed on his 65th birthday. The employee brought a claim for unfair dismissal and age discrimination under the old Employment Equality (Age) Regulations 2006.
The Court of Appeal eventually upheld the decision by the Employment Appeal Tribunal that the employer had not properly informed the employee of his right to request continuing work beyond 65. The statutory retirement notice informing an employee of their right to request not to retire must specifically cite paragraph 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006. The dismissal was unfair, regardless of whether the employees subsequent letter did or did not comply with the age regulations.
Implications for employers
- The statutory retirement procedure was repealed (subject to transitional arrangements) with effect from 6 April 2011 – therefore this decision is of limited significance for the future.
- This case does suggests the correct procedure to follow if employers wanted to retire an employee when they reached the old default retirement age.
- Employers under the old rules should have alerted employees that their request to carry on working had to follow the Age Regulations and they must have directed employees to the specific procedural requirements in these (now repealed) Regulations.
- However, employers who had already issued notices of retirement before the repeal of the retirement procedure would need to check that their notices were adequate.
- To avoid doubt, any employers issuing notices under the old procedure should have expressly stated to the employee that the employee should specify that their request is ’made under paragraph 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006.
- Any employers who had not communicated the statement referred to above to their employees run the risk of their retirement notices being invalid.
- If an employer is deemed not to have followed the statutory retirement procedure, then the reason for dismissal will not automatically be retirement and the employer will have to prove the reason for dismissal if it reaches a tribunal.
CF Capital plc v Willoughby | Court of Appeal | 12 Oct 2011
 EWCA Civ 1115
Issue: Termination of employment – retraction
A sales manager had some discussion with her line manager about the possibility of avoiding redundancies by moving some of the sales team from being direct employees to working on a self-employed basis.
The sales manager said she had expressed an interest in becoming self-employed, but did not believe that she had agreed to this. However her line manager thought she had agreed to the switch. Three weeks after the initial meeting the sales manager received a letter enclosing the agreement for self-employment. The letter said that termination of her existing employment contract would be effective from 31 December 2008. She took legal advice and was told by her solicitor not to return to work after the Christmas break. The line manager telephoned her and tried to reassure her that there had been a misunderstanding and if she did not wish to become self-employed she could go back to her old role.
She did not do this, but claimed wrongful and unfair dismissal.
The employer said that she had resigned rather than been dismissed. Eventually the matter reached the Court of Appeal, which held that the employer had dismissed her and it could not retract clear written words of dismissal which had been accepted by the employee.
Implications for employers
- A clearly worded letter terminating employment cannot usually be unilaterally retracted by an employer. Exceptions to this are rare.
- If an employee uses unambiguous words of resignation to the employer they have resigned and thereby terminate the contract of employment.
- A letter terminating employment can however be retracted with the employee’s agreement. A letter of resignation can also be retracted with the employer’s agreement.
- There is a ‘special circumstances’ rule which means that even clear words of dismissal do not terminate the employment. The most common example of this is a heat of the moment verbal exchange. In such cases clear words of dismissal may not terminate employment and the employer can unilaterally retract its position within a reasonably short period of time.
- The special circumstances exception will arise when the purported notice has been given verbally with words that are quickly regretted. Such cases are rare.
Gosden v Lifelong Project Ltd | Employment Tribunal | 28 Jul 2010
Issue: Unfair dismissal – inappropriate use of internet
An employee who worked for a charity which assists drug-users was placed to assist with work in prisons for the Prison Service (HMPS). In his own time, the first employee sent an offensive email from his home computer to a HMPS colleague’s home computer. The email was racist and sexist. The colleague forwarded the email to another colleague on a HMPS work address. The first employee was suspended from working for the HMPS and the second one was ‘allowed’ to retire.
The charity investigated and found that the first employee had committed gross misconduct for having carried out an act which might damage the charity’s reputation or integrity and for having breached the equal opportunities policy. Also, as he had been excluded by HMPS from all their prisons in Yorkshire and Humberside, his employment was no longer viable. The employee was dismissed for gross misconduct. He claimed unfair dismissal and wrongful dismissal. The employer won. It was within the range of reasonable responses for it to consider that forwarding such an email to its largest client might damage its reputation and that this can be an act of misconduct.
Implications for employers
- Employers must have carefully drafted gross misconduct clauses in their employment contracts and carefully drafted equal opportunities, disciplinary and internet and communications policies. These must all be co-ordinated with respect to gross misconduct.
- Employers should remind employees what email communication is and is not acceptable.
- Employers should characterise misconduct correctly, relying on their definitions of gross misconduct and what brings the organisation into disrepute.
- Employers may be able to dismiss for some acts of misconduct which occur in the privacy of the employee’s own home in their own time, although it is a difficult decision to make. In this case the email was headed ‘It is your duty to pass this on!’ and therefore the employee knew that it was likely to be passed on.
- Employees may raise Human Rights Act 1998 claims, in particular the right to a private life, but employers can defeat such arguments where emails such as this are clearly not intended to be private.
Gisada Cyf v Barrett | Supreme Court | 13 Oct 2010
 IRLR 1073, SC
Issue: Date of dismissal
An employee was dismissed in a letter which was sent by special delivery and signed for by her son on 30 November 2006. She had been expecting the letter to arrive, but she had to go away for a few days because her sister was giving birth. She did not open the letter and find out about the decision until 4 December 2006. She brought a claim of unfair dismissal on 2 March 2007. If the effective dismissal date was 30 November her claim would be out of time, but if it was 4 December it would be in time.
The Supreme Court held that the effective dismissal date was 4 December when the employee opened the letter. She should not be criticised for letting her letter stay at home unopened instead of getting her son to open it and read it to her, as the contents were private. She had not deliberately failed to open the letter or gone away to avoid reading it and therefore the dismissal date should be 4 December when she found out about the decision. The Supreme Court also held that on policy grounds it was desirable to favour the employee in interpreting time limit provisions and that strict contractual laws concerning contract termination should not displace the statutory framework.
Implications for employers
- Employers often communicate the final dismissal decision by post or email. This may be easier for all concerned and employers will inevitably continue to do this. However employers should bear in mind that dismissal by post or email has some disadvantages as well.
- Employers should always remember that to be valid a dismissal has to be communicated.
- Employers should ensure that the employee has a reasonable opportunity to read letters of dismissal.
- Dismissals communicated in person can leave less room for ambiguity.
- In many cases it will not matter as to the precise date of termination but in cases where timing is crucial (for example where the employee is close to attaining the one-year's service for an unfair dismissal claim) then the employer should consider dismissing in person and carefully documenting the meeting by keeping minutes and confirming the dismissal in writing as well.
- Guidance to the Acas Code of practice on disciplinary and grievance procedures recommends that face-to-face dismissals should be confirmed in writing in any event.
Celebi v Scholarest Compass Group UK and Ireland | Employment Appeal Tribunal | 27 Jul 2010
(unreported, UKEAT/0032/10 27 July 2010, EAT)
Issue: Dismissal - procedures
An employee was believed to have stolen £3,000 from her employer. In a letter of suspension to the employee the allegation was stated as a ‘loss of £3,000’ which could have meant by inefficiency, an innocent mistake or theft.
Subsequent correspondence calling her to a disciplinary hearing led her to believe that she was being accused of theft, but this was never confirmed by the employer. Following the disciplinary hearing she was dismissed and the dismissal letter reiterated the allegation as the reason for her dismissal. She brought a claim of unfair dismissal which was eventually upheld by the Employment Appeal Tribunal who found that the failure to put the allegation of theft to the employee meant that the dismissal was unfair. Money could go missing for a variety of reasons and the employer’s response would vary depending on whether they were accused of inefficiency, negligence or dishonesty. The employee should have had the allegation of theft put clearly to her.
Implications for employers
- Employers must be as comprehensive and accurate as possible in any disciplinary communication, particularly the initial letter setting out the allegations or the letter inviting them to a disciplinary hearing.
- Employers should not be embarrassed and try to avoid the true allegation by using ambiguous or vague wording.
- Particularly if dishonesty is alleged, the employer must make the nature of their allegation very clear to the employee.
- Disciplinary and grievance policies and indeed employment contracts themselves should clearly explain how offences of dishonesty will be treated.
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.