Law360, London (March 21, 2023, 3:39 PM GMT) -- An employment judge ruled that the former head teacher of a London Catholic school was fairly dismissed for often showing up to work smelling of. (Bowes, 2002), Even if the employee specifically agrees that the term will not be renewed he can still claim unfair dismissal, the employer has to establish the reason for dismissal. The school was also criticised for failing to properly question the evidence of the pupils, to test the details of each students account, and for relying on the head teachers personal view that the students were well behaved and from good homes. The employer must invite the employee to a hearing at a reasonable time and place where the issue can be discussed. You can accept or reject cookies which are not essential for the site to work by clicking on the Cookie settings below. Disciplinary proceedings for gross misconduct and investigation of the facts were more like interrogations. In Dietmann v Brent London Borough Council, it was held that even in the face of obvious misconduct, an employer will have to adhere to the terms laid out in the contract if the terms specifically set out what must happen before a dismissal can occur. Unsolicited emails and other information sent to Dentons will not be considered confidential, may be disclosed to others, may not receive a response, and do not create a lawyer-client relationship. New Cognizant jobs added daily. While the major argument advanced above is that the employer has been placed under undue constraint most recently by the punitive consequences of failing to comply with the statutory disciplinary procedure it should not be forgotten that the most recent round of legislation to regulate behaviour in the workplace is also capable (as a result of the impact of the statutory grievance procedure upon claims for constructive dismissal) of prejudicing the employee. This cookie is set by Facebook to display advertisements when either on Facebook or on a digital platform powered by Facebook advertising, after visiting the website. The NASUWT member said: I found the litigation an extremely gruelling and difficult process and, without support from the NASUWT and Thompsons, I would have given up but I was determined to prove that I am innocent. It s submitted that there are dangers in both approaches. Similarly, in Haddon v Van den Bergh Foods Ltd, the EAT suggested that the tribunal should consider whether the employer acted reasonably in invoking the ultimate sanction of dismissal. When Mr Hastings made a grievance concerning racial discrimination, no further investigation was made into the grievance and it was swiftly dismissed. This cookies is set by Youtube and is used to track the views of embedded videos. Dismissal of teacher found to be unfair by Employment Tribunal, https://www.thomasmansfield.com/wp-content/uploads/2021/07/office-worker.jpg, https://www.thomasmansfield.com/wp-content/uploads/2023/02/thomas_mansfield_solicitors_small.png. Or, if there were more than one reason for dismissal it has to be specified. But if for unforeseen reason resulting from a postal delay or on the closure of a tribunal office for one reason or another from other party, a short extension may be granted. He was awarded 4,002 for breach of contract, 42,827 for unfair dismissal and a further 3,293 for untaken annual leave. Time-limits for presenting complaints are strictly enforced. If an employer is ordered to reinstate or re-engage and does not do so, the tribunal may award a further payment. The so-called objective test of the reasonable employer might be regarded by the employee as leaving him vulnerable since it is the reasonable employer rather than the reasonable man that is set as the benchmark. Because an employer is generally entitled under the terms of the contract to dismiss upon giving the appropriate period of notice as stipulated by the contract, damages will often be limited to the loss of earnings during that period. The three types of dismissal are contained in s.95(1) of ERA 1996: The first is seemingly the most straightforward but is not without its own complications. Unfair dismissal is a wholly distinct concept first introduced by the Industrial Relations Act 1971. If you are not already a client of Dentons, please do not send us any confidential information. As has been seen above, the new s.98A ERA 1996 which came into effect on 1st October 2004 renders breach of certain minimum procedural requirements unfair. View examples of our professional work here. A Tribunal will take into account whether or not the employer followed proper procedures. (Anon, netlawman.2011). Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. Thus, the contract is capable of providing procedures which would have to be followed in the event that dismissal was contemplated. These cookies track visitors across websites and collect information to provide customized ads. There are limits on the maximum that can be paid in ordinary cases but no limits in some others, like SEX DISCRIMINATION cases. As to 'unfair', the law deems a dismissal as a result of trade union membership or activity or non-membership of a trade union as unfair. (Willey, 2003, p337), Thus as presented above it is suggested that there can be a redress, however that redress may be adequate or not, but the employee may receive compensatory award or basic award, or can also make additional award if the court orders his employer to re-employ him but they fail unreasonably to do so. The employee's duty of obedience (implied by law into every employment contract) requires that the employee cooperate with all lawful and reasonable directions of the employer. Try our selection of quizzes for aspiring lawyers for a fun way to gain insight into the legal profession! The cookie is used to store the user consent for the cookies in the category "Analytics". It was not, however, sufficient for the tribunal to simply ask what they would have done without recognising that their personal views might not accord with reasonableness. The implications of the new statutory grievance procedures may be considered even more undesirable in their effect than the potential consequences of the disciplinary procedures which are the subject of criticism above. }[emailprotected]. googletag.enableServices(); The purpose of the cookie is to enable LinkedIn functionalities on the page. Unfair Dismissal Case 2: Does the ACAS Code of Discipline and Grievance Apply to SOSR D. The Phoenix House case concerns an employee (the claimant) who was dismissed for an irretrievable breakdown in the working relationship with the employer. Due to the rescheduling of the NAPLAN test, the College had two NAPLAN tests, one of which was the numeracy test, scheduled on the same day. Investigations into the altercation were heavily based on CCTV footage at the expense of other evidence that would have supported the claimants point of view. This came down to the fact that the sex offender was a potential risk to school children, given the unlimited access to pupils personal information that a headteacher can offer. Unfair Dismissal - LawTeacher.net While the argument in the preceding paragraph may possibly be regarded as somewhat tongue in cheek, it serves to highlight the fact that there may well be merit in reassessing the efficacy and balance of the current approach of the law in cases of unfair dismissal. Following the meeting, the procedure is the same as in a disciplinary situation with an obligation upon the employer to notify the employee of his decision and the subsequent opportunities for appeal. PRINT Issue 224 June 2023 | Article of the Week, GRADUATING FROM WELLBEING INITIATIVES TO A WELLBEING STRATEGY HRDEBATE REPORT, Sarah Hayes, HR Director, Securitas UK and Securitas Technology, ET rules that male agency worker is victim of sexual harassment after witnessing female employees being sexually harassed, How to measure productivity in a knowledge economy. In Reilly v Sandwell Metropolitan Borough Council [2016], the Supreme Court was faced with the issue of whether the headteacher of a primary school could be fired for not disclosing her close yet platonic relationship with a convicted sex offender. Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features. Free resources to assist you with your legal studies! This cookie is used to store the language preferences of a user to serve up content in that stored language the next time user visit the website. Working with the NASUWT, Thompsons Solicitors investigated the members case and brought an Employment Tribunal claim for unfair dismissal. (Anon, 2011, net lawman.). You should not treat any information in this essay as being authoritative. There are three time-limits which Tribunals do not have power to extend: There is no onus of proof on the employer or employee for this purpose the employment tribunal must simply take into account all the circumstances, including the size and administrative resources of the employers undertaking. Although the school said the Facebook posts did not amount to whistleblowing, the tribunal judge ruled that they did and said they were the principal reason for the initial dismissal. The cookie is set by the email marketing service MailChimp. Lord Hoffman argued that the employer should have applied the balance of probability to the situation. (b) shall be determined in accordance with equity and the substantial merits of the case. An employment tribunal heard PE teacher Mr Thomas had been at loggerheads with Mrs Widdowson, the troubled secondarys head, for some time, as he said she eroded the stability, performance and structure of the school using a very dubious, manipulative and cynical approach. The FWC was satisfied that the Deputy Principal had expressly told the teacher not to email parents regarding the scheduling of the numeracy NAPLAN test. However, the employee lost on further appeal when Lord Denning held that for there to be a constructive dismissal, the employers actions had to amount to a significant breach of the contract of employment. In these circumstances, the employer can dismiss the employee summarily but must set out in writing his reasons for doing so and inform him of a right to appeal. The cases are dealt with not by the ordinary courts but by the EMPLOYMENT TRIBUNALS. The common law approach to measure of damages described above can hardly be condemned as less satisfactory. The employer must show the reason for the dismissal. }); We interview JULIE HOLDAWAY, GROUP HR DIRECTOR - HARVEY NICHOLS And cover topics including our ROUNDTABLE: Graduating from Wellbeing Initiatives to a Wellbeing Strategy Topic Featured: Future of Performance Management, HR Tools, How is Tech Impacting Work?, Operating under Economic Pressure Buy this issue now, click here. There are several ways your dismissal could be unfair, your employer does not have a fair reason for dismissing you (e.g. The common law duty of obedience is demonstrated in the famous English decision of Pepper v Webb [1969] 2 All ER 216. The six month period for claims under the Equal Pay Act 1970; The six week period for an appeal against non-discrimination notice under the Sex Discrimination Act 1975 or the Race Relations Act 1976; The seven day period for an application for interim relief when an employee alleges unfair dismissal on grounds related to trade union membership or activities contrary to Trade Union and Labour Relations Consolidation Act. However, once he has been dismissed, an employee is not obliged to mitigate his loss for basic award, which is different from the compensatory award position. Unfair Dismissal Case 1: Is Being Dismissed for not Disclosing Your Personal Relationships Unfair? Admittedly, the case of Phoenix House Ltd v Stockman & Anormay simply adds to the confusion. unfair dismissal: in the employment law of the UK , a termination of the employment of a worker for a reason that is not permitted under statute. var googletag = googletag || {}; Current Criminal Law Issues You Need to Know. Unfair Dismissal Essay Lawteacher | Best Writing Service The ACAS Code of Practice on Disciplinary and Grievance Procedure applies to dismissals based on the employees misconduct or poor performance. If the employer did not follow the procedure, a potential fair dismissal can turn to an unfair dismissal. Thanks to the ruling by the Employment Tribunal in my favour I am now able to make plans for my future., Ms Chris Keates, general secretary of the NASUWT, said: Too many teachers still go through the nightmare of having their livelihoods put at risk by false allegations made against them. Published: 14th Aug 2019. The schools investigation also showed that its firewall made it impossible for anyone to look at a pornographic website on school computers. These cookies ensure basic functionalities and security features of the website, anonymously. The basic award part is not related to loss suffered. Keep up to date with the latest Employment Law news and events. S.95(1)(c) ERA 1996 states that a resignation will amount to a dismissal if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employers conduct.