This year we have seen the qualifying period for issuing an unfair dismissal claim increase from one to two years for those whose employment began on or after 6 April 2012. More changes are planned for the next few years such as the early use of settlement agreements, pre-claim conciliation, introduction of tribunal fees and revision of compensation limits. With much legislative revision to look forward to next year, what lessons have we learnt from the tribunals and courts this year?
Effective date of termination (EDT)
The EDT remains all important for calculating whether an employee has sufficient qualifying service and whether a claim has been brought in time. While in theory pointing to the EDT sounds simple, it is not always straightforward. From this year's crop of EDT cases we have learned:
- Normally where an employee is dismissed without notice the EDT will be the date of that actual dismissal, but this is not always the case. Where an employee makes an internal appeal, if unsuccessful the dismissal without notice is confirmed and so the EDT stays as the date of actual dismissal. If successful, the dismissal falls away and the employment continues.
However, there is a third option. An employer may uphold the appeal as regards a dismissal without notice, and instead impose a dismissal on notice. Just as the contract of employment revives indefinitely if an appeal reinstates the employee, so it revives for a limited period if an appeal varies a summary dismissal to a dismissal on notice (Hawes & Curtis Ltd v Arfan).
- Once notice has been given, a fresh letter of dismissal giving shorter notice may be served during the original notice period. This can be effective in bringing forward an employee's EDT, in order to avoid accrual of qualifying service to bring an unfair dismissal claim (Parker Rhodes Hickmotts Solicitors v Harvey).
- Where an employee resigns with immediate effect via a clearly communicated letter, the EDT is the date the employer receives the resignation letter. Also, an employee giving notice to a large employer need not communicate it to a particular individual for it to be effective.
So for a letter addressed to the Chief Executive dated 28 January which was received, opened and date stamped by administrative staff on 29 January, the EDT was 29 January. It was irrelevant that the Chief Executive did not actually read the letter until 2 February (Horwood v Lincolnshire County Council).
- But remember to read the full letter including its date! In Vasella Ltd v Eyre, an employee wrote a letter resigning 'with immediate effect' addressed to the General Manager and dated it 22 November. However, the letter was hand delivered on Sunday 21 November, when the resigning employee knew the general manager would not be working, to avoid a confrontation. In that case the EDT was 22 November in light of the clear dating of the letter, despite its early delivery.
Last year, employers received a warning that if a tribunal considers an earlier warning was issued in bad faith or was manifestly inappropriate, that warning will be invalid and should not be taken into account subsequently. This year, EAT reminds tribunals that once it has found an earlier warning to be valid, it cannot look behind it to see if it was justified.
Also, similarity is not required between the current misconduct and the misconduct which was the subject of the earlier warning . A final written warning implies further misconduct of whatever nature will be met with dismissal, unless there are truly exceptional circumstances (Wincanton Group v Stone).
Range of reasonable responses test
For a dismissal to be fair, an employer must have acted reasonably in treating the potentially fair reason as a sufficient reason for dismissal. This is judged against the long established reasonable responses test. This year the tribunals and courts reminded us:
- Where a dismissal will significantly affect an employee's reputation/career prospects, more will be expected of a 'reasonable' employer with regard to the investigation (Crawford v Suffolk Mental Health Partnership NHS Trust and Turner v East Midlands Trains).
- The reasonableness of an employer's investigation in an ill health case is not to be judged by reference to the employee's length of service. An employer is not obliged to carry out a more detailed investigation in the case of a long serving employee nor is he entitled to carry out only a casual investigation in the case of an employee whose length of service is short. The employee's length of service is simply not relevant to the assessment of their state of health (Dundee City Council v Sharp).
- When considering whether a dismissal falls within the range of reasonable responses, a tribunal can only take account of the reasons for dismissal that were in the employer's mind at the time (Nejjary v Aramark Ltd).
For a claim of constructive unfair dismissal to succeed, the resignation must be in response to a fundamental breach of contract. However, that breach need not be the only reason for the resignation; nor, indeed, must it even be the principal reason (Logan v Celyn House Ltd).
In Redfearn v United Kingdom, the European Court of Human Rights ruled that the one year qualifying service requirement to bring an unfair dismissal claim violates Article 11 of the Convention on Human Rights (freedom of association). It does so on the basis of not containing an exception for dismissals on the grounds of political opinion or affiliation or, alternatively, a free-standing claim for unlawful discrimination on grounds of political opinion or affiliation.
This case concerned a bus driver responsible for the transporting of disabled passengers who were predominately of Asian origin. He was dismissed after his election as a BNP Councillor. It is important to note that the judgment does not suggest that dismissing an employee because they are a member of a political party should be automatically unfair.
The Court held that employees in this situation should simply be afforded the opportunity to challenge their dismissal using the existing unfair dismissal provisions. The violation of Article 11 was caused by the imposition of a qualifying period, which meant that the unfair dismissal right was not available to all. We wait to see if the Government intends to change the existing statutory provisions in this regard.