Here we list a selection of key cases on dismissal, providing a summary of the decision and implications for employers.

Rodgers v Leeds Laser Cutting Ltd | ET |12 March 2021
1803829/2020
Issue: COVID-19 - automatically unfair dismissal due to workplace danger

An employee was held not to be unfairly dismissed after he refused to attend the workplace due to COVID-19 concerns.

The employee worked in a large warehouse with a colleague who had COVID-19 symptoms. The employee told his manager he would be staying away from his workplace until lockdown eased. His children had sickle-cell anaemia and he was concerned of the risks that COVID-19 posed to them. A month later, the employee was dismissed and claimed automatically unfair dismissal (which does not require 2 years’ service normally needed for unfair dismissal claims). His claim was 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 case shows the importance to employers of taking COVID-19 health and safety measures.  Whether there is serious and imminent danger depends on the precautions taken by employers. The employee here could not demonstrate there had been any workplace danger and he did not raise his concerns before leaving. The employer had carried out risk assessments, followed the government guidance on social distance, hand washing and masks. The employee alleged concerns about the risks of COVID-19 but drove a friend to hospital the day after he refused to attend the workplace.

COVID-19 is not treated as automatically creating a serious and imminent danger, otherwise all employees could stay away from the workplace as a result of the pandemic which would lead to many claims. What employers must do is take steps to mitigate the risk of the workplace being dangerous.

Accattatis v Fortuna Group (London) Ltd | ET | 25 May 2021
3307587/2020
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).

Kubilius v Kent Foods Ltd | ET | 10 February 2021
3307587/2020
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.

Montanaro v Lansafe Ltd | ET | 1 April 2021
2203148/2020
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.

[2018] UKEAT/0256/17/LA 
Issue: Unfair dismissal - notice and termination date

Facts

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.

Decision

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.

[2018] EWCA Civ 1689 
Issue: Unfair dismissal – successful disciplinary appeal revives employment

Facts

A 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.

Decision

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.

​UKEAT/0293
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 relyied 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.

[2013] 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.
EAT/0464/13
​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.

​UKEAT/0288/12
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.

(UKEATS/0002/12
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.

[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.

​[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.
ET/2802731/2009
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.

​[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.

​(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.

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