Unfair Dismissal

Pre-termination discussions were inadmissible in an unfair dismissal claim because they constituted a ‘protected conversation’ and were not tainted with impropriety.

The Court of Appeal holds that employers do not have to conduct general workforce consultation for an individual redundancy dismissal to be fair. It overturns the EAT decision which suggested that consulting employees individually is not sufficient, even if collective consultation obligations do not apply.

Consulting with staff on redundancy pools is essential, especially where a pool of one is concerned.

Although on the facts of this case failure to consider redeployment did not amount to a failure to make reasonable adjustments, the tribunal should have considered the issue of redeployment when deciding the fairness of a dismissal, even though it hadn’t been raised by the claimant.

A tribunal wrongly rejected a claim for automatic unfair dismissal brought by an employee who was dismissed after demanding to be allowed to work from home and be furloughed during the COVID-19 pandemic.

The passage of time before an employee resigns will not necessarily by and of itself amount to the employee affirming their contract and therefore losing the right to claim unfair constructive dismissal.

The EAT re-examines the current legal position surrounding the retraction of a resignation made in the heat of the moment. Subjective intention is irrelevant and a reasonable bystander test applies.

An employee was not unfairly dismissed when his employer extended his termination date multiple times to give him a chance to return to work from sickness absence.

The lack of a meeting between an employee and the dismissing officer will not in and of itself, in all circumstances, make a dismissal unfair.

An employee made redundant in the early months of the COVID-19 pandemic was unfairly dismissed because her employer hadn’t considered furloughing her as an alternative to redundancy.

A letter amounted to an effective letter of termination for the purposes of an unfair dismissal claim, despite the letter being marked ‘without prejudice.’

It was not unfair to dismiss an employee after reopening a previously concluded disciplinary process that had led to a final written warning.

An employee dismissed for leaving work and refusing to return because of COVID-19-related concerns was not automatically unfairly dismissed.

A successful appeal against a dismissal will automatically result in reinstatement back into employment unless the employee objectively and unequivocally withdraws their appeal against dismissal before the appeal is decided. This remains the case even where the employee expressly says to the appeal decision maker that they do not want to return to work.

An employee was fairly dismissed for failing to disclose his bankruptcy, despite the absence of an express contractual requirement or policy requiring him to do so.

A fundamental breach of contract can be established even where the employer’s actions do not indicate an intention to end the employment relationship.

A failure to make reasonable adjustments as part of a dismissal process doesn’t mean that the dismissal itself is necessarily unfair.

An employee who requests voluntary redundancy does not necessarily have no reasonable prospects of success in a claim for unfair dismissal.

The dismissal of a care home employee for refusing to be vaccinated against COVID-19 was fair.

An employee was unfairly dismissed after raising health and safety concerns about working during lockdown.